Environmental Defenders Office

$40,000 | November 2021

What do EDO do?

EDO is the largest environmental law practice in the Australia Pacific. They use the power of the law to run groundbreaking cases and deliver legal solutions for people, nature and climate, driven by our vision of the world where nature thrives.

Why is this work important?

The walls are closing in on the fossil fuel industry. This year alone, some incredibly significant judgments have been handed down by courts in Australia and overseas in cases against Adani, Shell and Whitehaven.

In May, EDO had a Federal Court win on behalf of our clients the Australian Conservation Foundation against Adani Infrastructure over their plans to pump billions of litres of water from a local river to service its coal mine. This win sets an important precedent because it’s no longer possible for coal and gas companies to avoid scrutiny of their impacts on water resources in Australia’s dry continent.

That same month the Hague District Court delivered a landmark judgement when it found that Royal Dutch Shell has a duty to protect the human rights of Dutch citizens from climate harm, ordering it to reduce its global emissions by 45% by the end of 2030.

In August EDO’s clients, Bushfire Survivors for Climate Action (BSCA) secured a landmark legal win on climate, when for the first time an Australian court ordered a government to take meaningful action on climate change. The court found that the NSW EPA is compelled by its own legislation to seriously address the state’s greenhouse gas emissions and climate change. The NSW Environment Minister has since ruled out an appeal.

As detailed earlier, EDO has a high success rate in our last 12 months of finalised climate change cases. They attribute this success in part to the increasing acceptance of the seriousness and urgency of climate action.

More broadly, with less than one month to go until the Conference of the Parties of the UN Climate Change Convention meeting in Glasgow (COP 26), Australia is under increasing global pressure to take meaningful action on climate change.

How is Groundswell supporting this work?

Groundswell’s funding is supporting EDO’s Safe Climate Team to develop landmark, innovative litigation on behalf of clients that prevent new coal and gas proposals and stop existing projects expanding in the Australia Pacific region.

A measure of EDO’s successful climate litigation is demonstrated by judicial decisions in favour of our clients, including:

• 2013 James Price Point LNG Terminal Refusal, Western Australia

• 2019 Rocky Hill Landmark Judgement - the first time an Australian court refused a fossil fuel development, partly on the basis of climate impacts.

• 2020 Bylong Valley Greenfield Coal Project Refusal on prime agricultural land, made possible from the earlier Rocky Hill precedent – EDO has since successfully defended this refusal in two appeal courts and will now appear in the High Court of Australia again to defend the decision.

• 2021 Bushfire Survivors for Climate Action v EPA NSW (above).

In the last year since July 2020, EDO has finalised nine climate change cases. In that period they’ve had six wins, two losses and one case where they lost, because the project was approved, but their work can be attributed to seriously improved project conditions.

Grant update

This Groundswell Giving grant contributed to the wages of a part-time solicitor and a part-time legal administrator – which is crucial to the ongoing development of new, ground-breaking climate cases. EDO's two legal staff worked in our Systemic Change Safe Climate cases, assisting in the development of landmark, innovative litigation and legal interventions. The more donations and grants we receive, the more legal staff we can employ to deliver safe climate interventions. Groundswell’s grant also contributed towards EDO’s communications, which saw our media presence in Australia increase exponentially by 1054%, and internationally by 60%.

EDO measures the impact of our activities through successful climate litigation, demonstrated by judicial decisions in favour of our clients, as well as the quantum carbon abated. During the Groundswell 21/22 grant period EDO has successfully finalised the below climate decisions:

New Acland Coal Mine

Approximate carbon emissions delayed: 12.42 million tonnes per annum The Queensland Land Court recommended that stage 3 of New Acland Coal’s controversial thermal coal mine in the Darling Downs region be refused unless new environmental conditions are put on the project by the government. This refusal was the latest stage in a very long-running legal battle by EDO lawyers, representing clients Oakey Coal Action Alliance (OCAA), a community group comprised of local landholders and farmers. Since 2015, OCAA has been opposing this mine expansion in the courts including a landmark win in Australia’s High Court in February 2021, which prompted the December 2021 Land Court re-hearing.

Bylong Coal Project

Approximate carbon emissions curbed: 8.26 million tonnes per annum EDO’s final victory over KEPCO’s Bylong Coal Mine in February this year made national and international news. The Korean government-backed fossil fuel company KEPCO had exhausted all its available legal options after being defeated by EDO’s clients, the Bylong Valley Protection Alliance (BVPA), at the NSW Independent Planning Commission, the Land and Environment Court, the Court of Appeal and the High Court. This was an epic legal challenge, described as a ‘David and Goliath battle’, which spanned several years with the matter now closed for good as of February 2022.

Yancoal’s Ashton Coal Extension

Approximate carbon emissions curbed: 5.76 million tonnes per annum In April 2022, Yancoal’s planned Ashton South-East Open Cut coal mine extension period expired, bringing an end to the decades-long fight against the proposal by the Camberwell and Hunter Valley community in NSW. The project’s planning approval was granted in 2015 and EDO represented the Camberwell community in a number of court battles against the mine. The Court of Appeal upheld an earlier decision of the Land & Environment Court that the mine could proceed only on condition that one of the last land owners standing, award-winning environmental activist farmer Wendy Bowman, sold Yancoal her land. Wendy's resilience was crucial to the community’s victory; she refused to sell, even updating her Will to ensure her farm could not be sold to Yancoal in the event of her death. EDO worked closely with concerned community members, local business owners, aligned organisations, and the Plains Clans of the Wonnarua People to win this battle against a mining giant, which would have devastated local farmlands, cultural landscapes and precious water resources in the Hunter Valley.

Santos Barossa Gas Project

Approximate carbon emissions delayed: 17.46 million tonnes per annum As Groundswell Giving Members are reading this impact report, Santos’ drill has been towed back to Darwin where it will sit for the foreseeable future. That is because the Federal Court of Australia has invalidated Santos’ approval to drill for gas in the sea north of the Tiwi Islands off the Kimberley coast, handing down their ruling on 21 September. Earlier in June 2022, EDO filed judicial review proceedings in the Federal Court on behalf of Tiwi Elder and Traditional Owner, Dennis “Murphy” Tipakalippa, challenging the approval of gas drilling plans for Santos’ Barossa Gas Project by the federal offshore regulator, the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA). We argued that the drilling approval was invalid because Santos did not consult with the Munupi community about the potential impacts to significant areas and spiritual connection to Sea Country, impacts to marine species that have cultural significance to the Munupi people, and impacts to traditional food sources from the sea.

Following the on-Country part of the hearing, the hearing concluded in Darwin on 26 August, with the Federal Court ruling invalidating Santos' approval to drill for gas because Santos failed to consult Tiwi Traditional Owners as required and had to vacate the Barossa field. Before it can apply for re-approval of its drilling plans, Santos must undertake detailed and meaningful consultation with Traditional Owners on the Tiwi Islands, as well as Traditional Owners living in coastal areas on the mainland in NT and WA, which could be impacted by a hydrocarbon spill caused by the project. This historic decision will have significant implications for Santos’ Barossa Gas Project, which was one of the dirtiest gas fields in the country, described as a CO2 mining project with an LNG by-product. Santos has dubious plans to use CCS to mitigate the project’s excessive CO2 emissions, which we are separately challenging in our “greenwashing” case about the veracity of Santos’ net zero target (referenced later in this report).

Crucially, this judgement has set a new standard for consultation with Traditional Owners for drilling approvals and put other fossil fuel companies “on notice” to not ignore First Nations people. This “David and Goliath” victory for the Munupi Clan is a testament to the community’s tenacity and bravery when contending with a multi-billion-dollar mining company. Speaking on the decision, Plaintiff and Tiwi Elder Murphy Tipakalippa said, “I am the happiest man alive. We are so happy and so relieved. We have won. The most important thing for us is to protect our Sea Country.”

EDO staff are still coming to terms with the implications of this game-changing judgement. We do know that similar operations, either pending or in operation right now, are now on notice about the need to consider and consult all potentially impacted Traditional Owner groups and reconsider how that consultation must take place. The implications for investment in the Barossa gas fields are also considerable. We know that South Korean investors, who have a 37.5% stake in this project, have previously stated that if Australia's courts invalidate the approvals they will consider pulling their investments, which could seriously jeopardise the project. This landmark decision epitomises EDO’s formidable and strategic capabilities – through legal interventions, allowing our clients, like Mr Tipakalippa to stand up and take on the most powerful of opponents and create lasting, tangible impact. Before Santos had even read the court’s decision, they announced their intention to appeal. This appeal has now been filed and EDO is preparing urgently for this court appearance.

Communicating our Progress

Legal work alone is not as impactful as legal work communicated, so EDO's media and marketing team works hard to ensure that our progress is communicated through effective domestic and global media. Over the grant period, EDO has been mentioned in the Australian media 3024 times and in international media 376 times. Compared to our media mentions and stories from the previous year, our media presence in Australia has increased by 1054%, and internationally by 60%. In the last two weeks alone, EDO has had 80+ stories online in both Australia and the international media landscape.