Deep dive into global climate change litigation in 2025

Key Insights

International climate change cases of 2025 reveal a number of recurring themes and tensions in contemporary climate change litigation:

• The limits of traditional tort law – The cases demonstrate that while traditional tort law (particularly negligence) continues to be a key vehicle for climate litigants, the elements of this cause of action (duty, breach, causation and loss) present significant obstacles in the climate context. In Pabai v Commonwealth of Australia (No 2), the court found that the applicants faced "effectively insurmountable legal hurdles and roadblocks" in establishing negligence against the Commonwealth. In Lliuya v RWE, the plaintiff's claim failed due to an inability to prove imminent harm, even though the court was satisfied that the defendant’s emissions could in principle cause climate change harm to the plaintiff.
• The justiciability barrier – The judiciary recently considered the fundamental question of whether courts are the appropriate forum for resolving climate policy disputes. In Pabai v Commonwealth of Australia (No 2), the court held that decisions about national emission-reduction targets are matters of "core policy" that "should be passed at the ballot box".
• The de minimis principle under pressure – The Doctors for the Environment (Australia) Incorporated v National Offshore Petroleum Safety and Environmental Management Authority (No 2) case highlights a growing battlefield in climate litigation: whether the indirect (scope 3) greenhouse gas emissions of a single project can legitimately be characterised as "de minimis" in the context of the global carbon budget. While the "de minimis" argument was favoured in the specific circumstances and on this occasion, the litigation strategy of attacking the absence of a defined threshold may be adapted and refined in future proceedings.
• Statutory compliance and the planning imperative – The case of Alternative A5 Alliance v Northern Ireland demonstrates that even where legislation does not prevent emission-intensive projects, statutory climate targets can be a basis for judicial review. The court's emphasis on "robust planning, synchronisation and co-ordination" across government departments sets a significant precedent for infrastructure decision-making in the United Kingdom.

Introduction

Climate change litigation continues to evolve at pace in Australia and around the world. At Ashurst, we have been tracking these developments closely. Below is a selection of our recent climate change alerts:

• 'Federal Court sets the standard for corporate climate commitments' published on 2 March 2026;
• 'Climate litigation in Australia: Key developments in 2025 and what's ahead for 2026' published on 19 February 2026;
• 'Public interest key to Santos' success in the National Native Title Tribunal' published on 9 September 2025;
• 'Pabai v Commonwealth: Climate change government responsibility and what it means for business' published on 16 July 2025;
• 'Greenwatch: Does a German appeal court decision provide a blueprint' published on 24 June 2025.
• 'Dutch Court of Appeal overturns Shell emissions ruling' published on 13 November 2024; and
• 'More greenwashing and other climate-related actions on the horizon in Australia' published on 14 March 2024.

Building on those insights, this article provides a deeper look at the most notable developments in climate litigation during 2025.

Energy Transfer v Greenpeace (United States)

In March 2025, a nine-person jury in North Dakota awarded a verdict of almost US$667 million against Greenpeace USA, Greenpeace Foundation and Greenpeace International (GPI), in favour of Energy Transfer LP and Dakota Access LLC, developers of the Dakota Access Pipeline (DAPL).

While Greenpeace claimed that the lawsuit was a Strategic Lawsuit Against Public Participation, or SLAPP suit, the jury found that all three Greenpeace entities had defamed the developer companies and incited illegal behaviour by anti-pipeline protesters. The jury awarded damages for twelve tortious claims, plus exemplary damages.

In February 2025, just before the North Dakota trial was about to start, GPI filed a lawsuit under the European Union's Anti-SLAPP Directive in the Netherlands claiming that Energy Transfer's lawsuit in the United States was a baseless action designed to silence critics and punish opponents of its project. (That case is still ongoing.)

On 9 September 2025, Judge Gion of the North Dakota District Court denied Energy Transfer's motion for an anti-suit injunction to block GPI's suit in the Netherlands.

On 1 April 2025, Greenpeace filed a Motion to Reduce Damages Award. In consequence, on 28 October 2025, Judge Gion issued an order reducing the jury verdict to approximately US$345 million. The new damages in Energy Transfer's favour were US$80,959,576 (compensatory) and $62,468,062 (exemplary). For Dakota Access, the new damages were $106,551,008 (compensatory) and $95,379,790 (exemplary).

Greenpeace has announced that it plans to appeal the judgment in this case.

Lliuya v RWE (Germany)

We wrote about this decision in our 4 June 2025 alert, "Greenwatch: Does a German appeal court decision provide a blueprint". Our more detailed summary is below.

The defendant RWE is a global energy company based in Germany. It released CO2 over the course of many decades in connection with coal-fired power generation facilities owned and operated by RWE and its subsidiaries in several countries, primarily Germany. The plaintiff alleged impairment of his property by the defendant from the accumulated contribution of its power plants to global warming. The plaintiff owned a plot of land with a residential building in Huaraz, Peru, situated below a glacial lake.

The history of this lake was central to this case. In brief:

• The lake was dammed by a natural moraine. Earthquakes and landslides occasionally occurred in the region.
• In 1941, the moraine damming the lake broke. A flood wave and mudslide destroyed large parts of Huaraz and claimed several thousand lives.
• In 1970, a magnitude 7.9 earthquake struck Peru, causing devastating damage in Huaraz and the surrounding area. There was no ice or glacier collapse or rock slide on that occasion. The authorities took various protective measures to reduce the volume of water in the glacial lake above Huaraz in order to lower the risk of another flood.
• In 2003, glacial ice broke loose and slid into the lake, causing an overflow.
• By 2009, the volume of water in the lake had risen again and the authorities declared a state of emergency in January 2011. It lasted until the end of 2012. With further measures, including installation of siphon pipes, the water level of the lake was again lowered. Three glacier-ice avalanches occurred in 2017, but there was no lake overflow.
• As of 2018, an early-warning system was installed at the lake. Ice and snow avalanches impacted the lake in 2019, 2021 and 2024, without any consequence for the city of Huaraz.

According to the plaintiff, his property was impaired by the climate-induced glacier melt and the resulting threat of "glacial lake outburst floods". But for global warming, the water level of the lake would be lower and the risk that chunks of ice would break off the glacier with devastating flooding consequences would also be lower. The plaintiff maintained that a flood-triggering avalanche above the lake was possible at any time. The plaintiff sought a declaration that RWE was obliged to bear the costs of suitable protective measures for his property, in proportion to its contribution to the causes of climate change. His claim was not for monetary compensation but for the elimination of the (impending) impairment, converted into a monetary claim.

RWE disputed that an adequate causal link existed. But the court did not agree. The judges did not express concern with RWE's very small proportionate contribution, the large number of emitters, or the plaintiff's standing.

The case finally turned on whether the plaintiff had succeeded in proving an imminent impairment to his property. Under the relevant German legal provision, such a claim arises, according to the court, only at the moment when a concrete source of danger has objectively formed proximate to the plaintiff's property. A potential, abstract or theoretical danger is not sufficient. The occurrence of the feared disturbance must be expected soon, in the imminent future. The court said that these terms will take their meaning from the circumstances of the individual case. The higher the legal interests threatened, the lower the requirement is of a high probability of occurrence. The greater the danger and probability of its realisation, the more likely it is that safety measures are needed.

On the basis of those principles, the court held that a maximum time limit of 30 years applied to framing the probability of occurrence of a glacial lake outburst flood affecting the plaintiff's property. It would be unreasonable, the court said, to use a longer period because future development around the lake could not reliably be estimated for a period greater than 30 years. In setting this limit, the court also took into account the severity of the potential damage to the plaintiff's property. In the event of a glacial lake outburst flood, his property could be destroyed.

However, the plaintiff had not succeeded in showing that the glacial lake posed a serious (i.e. imminent) threat to his property. Expert evidence determined that the chances of a modest, non-destructive glacial lake outburst flood occurring in the next 30 years was around 1%. This was judged very low compared with natural-hazard scales applicable to alpine settings. The occurrence of a destructive glacial lake outburst flood was even more unlikely and therefore of even less concern.

The decision is final, with no opportunity for appeal.

In the final analysis, the plaintiff lost because he was unable to prove that climate change had created a risk of serious imminent damage to his property. The fact that climate change is slow-moving (with effects manifesting gradually, over decades) was decisive against the plaintiff, who had argued that his property was under imminent threat from climate change.

The court observed that piecemeal adaptive measures taken by the Peruvian governmental authorities over many years tended to mitigate the risk of the feared destructive events from climate change – and that such measures could be expected to continue to be implemented for the purpose of managing that risk. Even allowing that the time period over which the future risk should be assessed was 30 years, the court was not persuaded that an "imminent" risk of a destructive event to the plaintiff's property from a glacial lake outburst flood occurring inside those 30 years had been proven.

Alternative A5 Alliance v Northern Ireland (United Kingdom)

The Alternative A5 Alliance (AA5A) applied for an order to quash an October 2024 decision of the Minister for Infrastructure for Northern Ireland to proceed with a 53.5 km first phase of a dual carriageway (the A5). The project was anticipated to have large beneficial effects on road safety, journey times, economic competitiveness and would help balance regional infrastructure and north/south links. Of relevance to the case was the Climate Change (Northern Ireland) Act 2022 (Climate Act), which came into operation in June 2022.

The Climate Act provides for the setting of targets for the reduction of greenhouse gas emissions, carbon budgeting and reporting. It requires Northern Ireland government departments to ensure that, by 2050, net emissions are 100% below the 1990 baseline ("net zero"). The Department for Agriculture, Environment and Rural Affairs (DAERA) of Northern Ireland was required to set targets for all Northern Ireland government departments (including itself) for 2030 and 2040 consistent with achieving the 2050 target. In a ministerial statement in December 2024, the DAERA minister informed the Northern Ireland Assembly that the 2030 target would be a 48% reduction, and the 2040 target would be a 77% reduction below the 1990 baseline. The Assembly adopted these targets.

As a result, under the Climate Act, all Northern Ireland government departments are under a duty to ensure that the net emissions account for Northern Ireland for the year 2030 will be at least 48% lower than in 1990 and the net emissions account for 2040 will be on track to achieve net zero by 2050. Each Northern Ireland government department including, relevantly, the Department for Infrastructure (DfI), also is under a duty to develop and publish sectoral plans relating to its sector of the economy which set out how the targets for 2030, 2040 and 2050 will be achieved for each sector.

For DfI, the sectoral plans needed to include proposals and policies for transport. However, the DfI plans were not produced within the allotted time frame. The first ground of challenge raised by AA5A was that, in the absence of any relevant sectoral plans, when deciding to progress a significant part of the A5 scheme (i.e. the first 53.5 km of highway), the DfI had failed to demonstrate compliance with its duty under the Climate Act (the so-called "section 52 duty") to ensure that the emission targets would be adhered to.

The Environmental Statement for the proposed section of dual carriageway acknowledged that it would be the largest road-building project ever undertaken in Northern Ireland, with consequent impacts on greenhouse gas emissions during the construction and operation phases. In February 2023, the Northern Ireland Greenhouse Gas Projections Update, published by DAERA, estimated that emissions in Northern Ireland had fallen from 28 Mt CO2 eq. in 1990 to 21 Mt CO2 eq. in 2020 and were estimated to continue to fall to 18 Mt CO2 eq. by 2031. On that estimate, the 2030 target would be missed. Transport greenhouse gas emissions in Northern Ireland, which had amounted to 3.4 Mt CO2 eq. in 1990, were expected to decline to 3.1 Mt CO2 eq. by 2031. This modest reduction of 300,000 t CO2 eq. was expected to be achieved by stricter emissions standards being implemented in respect of new vehicles and increased use of electric vehicles.

In March 2023, the UK Climate Change Committee published a report entitled "The path to a Net Zero Northern Ireland". The Committee concluded that Northern Ireland would face difficulty meeting its 2050 reduction target. It recommended a number of near-term actions, including a significant reduction in emissions from transport to 2.4 Mt CO2 eq. by 2030.

Greenhouse gas emissions for the first phase of the A5 scheme were estimated at 322,000 t CO2 eq. for the construction phase and 575,000 t CO2 eq. for the operation phase (2028 to 2087). The DfI had sought to demonstrate that these emissions, when appropriately assigned to the relevant UK carbon-budget periods, constituted very small percentages of the relevant carbon budgets. Nevertheless, by 2031, the construction and operational phases would have generated approximately 350,000 t CO2 eq., which would be more emissions than the anticipated reduction of 300,000 t CO2 eq. for the entire transport sector by the same year.

The court held that the section 52 duty under the Climate Act meant that all the Northern Ireland government departments had to cooperate with each other to assist each other in the achievement of the climate targets.

The Climate Act did not prevent an infrastructure project which was the source of significant greenhouse gas emissions from going ahead. Instead, "what it does clearly rule out is the construction and operation of such a major project in the absence of robust planning, synchronisation and co-ordination" among all Northern Ireland government departments "to ensure that the project fits into the plans, strategies and policies which map out a realistic and achievable pathway to achieving net zero by 2050, meeting the interval targets on the way and staying within the carbon budgets".

The DfI was wrong to simply assume that other departments were doing what was required of them to decarbonise the transport sector and that they would factor in the impact of the construction and operation of the A5, given its high-profile status throughout the Northern Ireland government) and that other sectors would as a matter of course be further pressured to achieve the legislated goals.

The court held that what the DfI should have done in order to comply with its section 52 duty was to produce cogent evidence that its decision had been made following careful planning, synchronisation and co-ordination between all Northern Ireland government departments. The evidence should have been able to demonstrate that the project fitted into plans, strategies and policies which mapped out a realistic and achievable pathway for Northern Ireland to achieve net zero by 2050 while meeting the interval targets and staying within the fixed carbon budgets. Instead, nothing was forthcoming, neither from the DfI nor from any other branch of the Northern Ireland government, to indicate that the government was formulating and co-ordinating plans, strategies and policies that would harmonise the A5 project's emissions with Northern Ireland's reduction targets. This "evidential lacuna" rendered the DfI decision non-compliant with the Climate Act's section 52 duty.

While the court quashed the decision on this basis (as well as on two minor or technical grounds), it also highlighted that the decision was capable of being remedied. It urged "concerted efforts […] by all concerned so that sooner, rather than later, a new and safer A5 dual carriageway may come into operation and the long list of names of those who have perished on that road will not be added to."

The judgment in this case was under appeal at the time of writing.

Pabai v Commonwealth (Australia)

We wrote about this decision in our 16 July 2025 alert, "Pabai v Commonwealth: Climate change government responsibility and what it means for business". Our more detailed summary is below.

The applicants contended that the Commonwealth had breached one or more duties of care that it allegedly owed to them and other Torres Strait Islanders to take reasonable steps to protect them from the impacts of climate change. They alleged that, in setting its greenhouse gas emission-reduction targets, the Commonwealth had failed to have regard to, or act in accordance with, the "best available science" in respect of climate change, thereby failing to prevent or minimise the impacts of climate change on Torres Strait Islanders.

The applicants also claimed that the Commonwealth had breached a duty of care it allegedly owed to them and other Torres Strait Islanders to take reasonable steps to implement climate change adaptation measures. In particular, the Commonwealth failed to build seawalls to protect the inhabitants of the Torres Strait Islands from inundation and flooding related to climate change.

The applicants' primary contention was that the Commonwealth owed them a duty of care, acknowledged to be novel, which required the Commonwealth to both identify an emission-reduction target for Australia (which, based on science, would prevent or minimise the impacts of climate change on the Torres Strait Islands) and implement measures to reduce Australia's greenhouse gas emissions so as to meet that target. The court called this the "targets duty of care".

As for the applicants' alternative submission on the adaptation duty of care, this submission was that the Commonwealth owed the Torres Strait Islanders a duty to take reasonable care to protect them against loss and damage caused by marine inundation and erosion. This alternative duty of care was said to require the Commonwealth to lead, coordinate and establish a coherent plan for the provision of funding for the protection of Torres Strait Islanders from the adverse effects of sea-level rise, inundation and erosion through the construction of seawalls. As finally pleaded and particularised, it effectively confined the scope of the duty of care to one which concerned the provision of funding for seawalls.

A key threshold issue in determining whether the Commonwealth owed the applicants the "targets duty of care" was whether the posited duty concerned "decisions or conduct of the Commonwealth in respect of matters of core or high government policy or policymaking, or matters involving political judgment, or the exercise of quasi legislative powers, such that it would be inappropriate or impractical for the court to pass judgment in respect of the reasonableness or otherwise of the Commonwealth's decisions or conduct in that regard."

The judge relied heavily for legal analysis on the reasoning of the full Federal Court in Minister for the Environment v Sharma (No 2) [2022] FCAFC 65 (Sharma), and in particular on the opinion of Allsop CJ in that case.

Following Sharma, the court held that where it is apparent from the nature of the alleged duty of care that the imposition of the duty would require the court to determine the reasonableness of government conduct involving matters of policy-making or political judgment, this issue should be addressed by the court at the duty stage and not be left to the breach stage.

The court found that Pabai was such a case. "Best available science" cannot provide an answer for the emission-reduction targets that a reasonable state actor in the position of the Commonwealth would set. That answer must also take account of economic, social and political factors.

By what criterion could a court judge whether it was reasonable for the Commonwealth to set emission-reduction targets by reference to considerations that were not limited to the dictates of science? By what criterion should it assess what weight to give to national budgetary considerations, for example?

The actions of the Commonwealth faulted by the applicants were governmental decisions of the highest order of political and policy content. "If judgment is to be passed in respect of the actions of the government in respect of such matters," the court said, "that judgment should be passed at the ballot box by those who are responsible for electing the government, not in the courts."

Because the targets duty of care advanced by the applicants threw up for consideration "core policy questions unsuitable in their nature and character for judicial determination" whose resolution was "uniquely suited to elected representatives and executive government responsible for law-making and policy-making" (quoting Sharma), the court declined to impute or impose the targets duty of care. Therefore, the court found that the Commonwealth did not (and does not) owe Torres Strait Islanders the duty of care concerning the setting of emission-reduction targets.

While the above was the ratio decidendi in relation to the targets duty of care, the court proceeded to consider in great detail the findings it would have made had the targets duty of care existed, had there existed a standard of conduct corresponding to the targets duty of care as advanced by the applicants, and whether the alleged failings of the Commonwealth which breached the posited standard of conduct caused the applicants to suffer any loss or damage. To all these questions the court answered in the negative.

The difficulty for the applicants was compounded by the fact that they were not able to identify any evidence in respect of any event caused by climate change – any particular flooding or inundation occurrence, any particular heatwave or severe storm – that caused them harm. This made it impossible to determine whether any increased emissions arising from any breach of duty by the Commonwealth could be said to have contributed any harm to the applicants as a result of climate change (let alone whether any such harm was material). There was a paucity of evidence concerning any property damage suffered by the applicants as a result of climate change and no real attempt was made by them to quantify any such damage. (No personal injury was claimed in this case.)

Ultimately, the damage claimed in this case focused on the applicants' allegation that they and other Torres Strait Islanders had collectively suffered a loss of fulfilment of "Ailan Kastom" arising from damage to, or degradation of, the common or communal land and marine environment of the Torres Strait Islands. They submitted that the court could and should either recognise a new and distinct head of damages which includes such losses, or recognise that loss of fulfilment of Ailan Kastom falls within an existing head of damages by analogy with losses that have been found to be compensable under that existing head. The court declined to find that fulfilment of Ailan Kastom is a right or interest, the loss or harm to which is compensable under the Australian common law of negligence.

In summary, the court held that the applicants faced "effectively insurmountable legal hurdles and roadblocks" in establishing the elements of their causes of action against the Commonwealth in negligence. At a basic level, the court did not recognise the novel "targets duty of care" alleged by the applicants. Second, on the assumption that that duty of care existed, the court found that it had not been shown that the Commonwealth's response to climate change and its measures to protect Torres Strait Islanders from the impacts of climate change constituted a breach of the posited duty of care. Third, even allowing that the Commonwealth had breached the duty of care, the court found that it had not been shown that those failings materially contributed to the loss or damage suffered by Torres Strait Islanders as a result of the impacts of climate change. Fourth, the applicants had not shown that the loss of fulfilment of Ailan Kastom as a result of the impacts of climate change was a recognised compensable loss under the Australian common law of negligence.

As for the adaptation duty of care, the question for the court was whether actions by the Commonwealth in respect of the funding of seawalls in the Torres Strait Islands involved matters of high or core government policy, such that it would be inappropriate or impractical for the court to pass judgment in respect of their reasonableness. The court answered in the affirmative. The imposition of the adaptation duty of care would have required the court to pass judgment on such matters as the respective roles and responsibilities of the three tiers of government in Australia in respect of climate change adaptation measures. It would also have required the court to pass judgment on how the Commonwealth allocates its budget and the manner in which it provides funding for infrastructure projects. These are matters that are inherently political and subject to complex jurisdictional and administrative arrangements spanning three tiers of government.

Moreover, there was no evidence in the case that any residents of the Torres Strait Islands had suffered any serious personal injury as a result of any particular flooding or inundation event which would support adaptation measures. Nor did the evidence support an inference that there was a significant risk that residents might suffer any serious personal injury as a result of flooding or inundation, requiring corresponding measures. There was evidence of a significant risk of damage to sacred sites and communal areas, such as cemeteries, that were culturally and spiritually important to Torres Strait Islanders and their practice of Ailan Kastom. However, the loss of fulfilment or the ability to practise Ailan Kastom was not a harm, as already noted, compensable under the law of negligence.

To summarise the outcome on the adaptation aspect of the case, the court was not satisfied that the Commonwealth owed Torres Strait Islanders the adaptation duty of care. This was the ratio decidendi; however, the court continued, even if the Commonwealth was subject to the adaptation duty of care, the court was not satisfied that the Commonwealth had breached that duty. Nor was the court satisfied that any breach of the adaptation duty had caused the applicants to suffer any compensable loss or damage.

In November 2025, the applicants filed an appeal against the decision of the Federal Court in this matter to the Full Federal Court. At the time of writing, the appeal to the Full Federal Court was still in progress.

DAMSHEG v MACH (Australia)

A community group, Denman Aberdeen Muswellbrook Scone Healthy Environment Group (DAMSHEG), contended before the NSW Court of Appeal that the NSW Land and Environment Court (LEC) had erred in dismissing its judicial review application challenging the validity of a development consent granted to the Mt Pleasant Optimisation Project (a coal mining development).

DAMSHEG advanced two grounds on the appeal, one of which was dismissed while the other was upheld.

The first ground of challenge raised by DAMSHEG (ultimately dismissed by the NSW Court of Appeal) was an allegation that the consent authority for the development, the NSW Independent Planning Commission (IPC), was required under section 4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and clause 2.20(1) of the State Environmental Planning Policy (Resources and Energy) 2021 to consider whether conditions should be imposed on the development consent to minimise the scope 3 greenhouse gas emissions associated with the project and that the IPC had failed to satisfy this requirement. On this ground, the NSW Court of Appeal found that the evidence indicated that the IPC had considered this matter.

The second ground of challenge (ultimately allowed by the NSW Court of Appeal) was an allegation that the IPC was required under s 4.15(1)(b) of the EP&A Act to consider the "likely impacts of [the] development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality" and that the IPC had failed to satisfy this requirement by failing to take into account climate change impacts. This ground narrowed in the course of the hearing to a specific contention about climate change impacts in the locality of the project. On this ground, the NSW Court of Appeal found that the IPC had failed to take into account the impacts of climate change in the locality of the project.

In December 2025, the project proponent, MACH Energy, was granted special leave to appeal part of the NSW Court of Appeal's decision to the High Court of Australia. At the time of writing, the appeal to the High Court of Australia was still in progress.

DEA v NOPSEMA (Australia)

This case concerned Woodside Energy Scarborough Pty Ltd’s application (on behalf of the Scarborough Joint Venture) for an approval to undertake petroleum activities (commissioning and long term operations) at its Scarborough gas field in Commonwealth waters, 375 km off the coast of Western Australia.

To enable Woodside to undertake the petroleum activities, Woodside’s Environment Plan was required to address certain criteria under the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2023 (Cth) (OPGGS(E) Regulations). The National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) was the regulatory body responsible for assessing the EP.

Under the OPGGS(E) Regulations, after an offshore project proposal (OPP) (primary approval) is approved by NOPSEMA, the titleholder is required to obtain acceptance of an environment plan (EP) (secondary approval) for each petroleum activity under the OPP, in order to undertake “petroleum activities” for the 5-year EP period.

Three revisions of the Scarborough Offshore Facility and Trunkline (Operations) EP were submitted to NOPSEMA for assessment. The EP dealt with various environmental impacts and risks of the proposed activity and included an assessment of the impact of direct and indirect greenhouse gas emissions. It was estimated that third-party greenhouse gas emissions (scope 3) associated with customer use of gas from the Scarborough Project would amount to 162 Mt CO2 eq. over the five-year period of the EP and 778 Mt CO2 eq. over the expected life of the project. In order to manage the risk, the EP set out control measures, environment performance outcomes (EPOs), environment performance standards (EPSs) and measurement criteria (MC).

NOPSEMA is required to accept an EP submitted by a titleholder if it is reasonably satisfied that it meets the EP acceptance criteria set out in reg 34 of OPGGS(E) Regulations. NOPSEMA accepted the EP in accordance with reg 33 of the OPGGS(E) Regulations. After NOPSEMA provided a statement of reasons for its decision, Doctors for the Environment Australia (DEA) sought judicial review of NOPSEMA's decision. Its core contention was that NOPSEMA should not have been satisfied that the EP met the criteria for acceptance under the OPGGS(E) Regulations.

The EP contains an environmental risk assessment, the identification of control measures, environmental performance outcomes, environmental performance standards and measurement criteria. While the petroleum activity under the EP would have directly resulted in a small amount of scope 1 and scope 2 greenhouse gas emissions, the focus of the proceeding was upon the identification of controls, EPOs, EPSs and MC for scope 3 greenhouse gas emissions associated with customer use of the gas – for example, onshore processing of gas, third-party transportation, regasification and combustion by end users. These were expected to release 778 Mt CO2 eq. over the life of the development (out of a total of 878 Mt CO2 eq. of project-related emissions). As far as greenhouse gas emissions went, the indirect emissions from third-party use would have been the largest source. These emissions, which were not part of the petroleum activity within Woodside’s control, were included because of interest by “relevant persons” during consultation, regulatory focus and Woodside’s position that they should therefore be "included for completeness".

The EP identified controls, EPOs, EPSs and MC that could be implemented given that the titleholders do not have operational control over third-party GHG emissions. In describing scope 3 greenhouse gas emissions, the EP provided context and noted that global energy demand is expected to increase and the availability of gas can support reducing more carbon-intensive fuels rather than displacing renewable energy, so it cannot be assumed that emissions from using gas would be entirely additive to global emissions.

This was referred to in submissions as the "displacement assumption". In assessing the risk and impact associated with scope 3 greenhouse gas emissions, the approach in the EP was to take most conservative, hypothetical scenario which assumed that there would be no displacement effect at all and so all emissions associated with project gas would be additive to global emissions. Even on this most conservative, hypothetical analysis where all emissions were assumed to be additive, the project's contribution to the global carbon budget required to meet the goals of the Paris Agreement was assessed as being de minimis.

This "de minimis" conclusion was arrived at for a number of reasons, including that 878 Mt CO2 eq. emissions comprised 0.37% of the remaining global CO2 budget for staying below the 1.5°C global warming limit of the Paris Agreement at a 50% likelihood (235 Gt CO2) and 0.08% of the remaining budget for staying below the 2°C limit (1,110 Gt CO2).

DEA focused on the de minimis claim, arguing that, for such a claim to succeed, the controls, EPOs, EPSs and MC would have needed to commit Woodside to a baseline threshold: what specific limit is acceptable in terms of indirect greenhouse gas emissions associated with a project and when is that limit exceeded?

During hearing, it was submitted that the regulatory scheme is “objectives based” (rather than prescriptive) and was designed to be flexible and enable bespoke controls in EPSs, appropriate to the nature and scale of the activity and the consequential environmental impacts and risks. There was no mandated quantification of acceptable levels of managed environmental impacts and risks in this scheme. The purpose of a control measure, EPOs, EPSs and MC, it was argued, was to reduce environmental impacts and risks to as low as reasonably practicable and to an acceptable level. However, this did not imply a requirement for a control measure, EPO, EPS or MC to be a specific benchmark.

The court accepted this analysis. In the "regulatory hierarchy", the court said, one commenced with an EP that was appropriate to the nature and scale of the activity. The first step, therefore, required a suitability assessment by reference to the nature and scale of the activity. This necessarily must accommodate such flexibility as is appropriate to the particular activity.

The second requirement is for the EP to demonstrate that the environmental impacts and risks will be reduced to as low as reasonably practicable. In the court's view, "as low as reasonably practicable" imported an inherently flexible requirement. It did not prescribe that there is only one way, or only a series of ways, of demonstrating that an identified environmental impact or risk will be reduced. Rather, "the reduction that is required to be demonstrated is bounded by objective reasonableness and practicability." If the outcome of the risk analysis is that there are alternatives where the implementation of one (or more) of the alternatives will have the effect of reducing an environmental impact or risk, the EP must demonstrate that the alternative which has the lowest practicable reduction is set out and justified. In a case where there are no true alternatives, the EP must demonstrate 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.

Thirdly, the OPGGS(E) Regulations import a requirement to demonstrate that the environmental impacts and risks will be of an acceptable level. This, according to the court, is to be read harmoniously with reduction to as low as reasonably practicable.

There is no requirement, continued the court, 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. The EP 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. The OPGGS(E) Regulations do not tie measurement criteria to environmental performance outcomes or environmental performance standards. There is no reason, therefore, why measurement criteria must be prescriptive. All that is required is that the EP includes measurement criteria that the titleholder will use to determine whether each environmental performance outcome and environmental performance standard is being met.

The court also addressed the use of a worst-case outcome assessment methodology (namely that even the most conservative, "no displacement", scenario led to a conclusion that there would be de minimis impacts). Because the OPGGS(E) Regulations, recalled the court, do not prescribe any methodology that must be implemented to demonstrate that the environmental impacts and risks of an activity will be reduced to as low as reasonably practicable and will be of an acceptable level, it follows that it was open to the titleholder to address each of these criteria by postulating a hypothetical worst-case scenario to demonstrate that the environmental impacts and risks of all greenhouse gas emissions will be of an acceptable level even if there is no displacement effect. A titleholder may proceed in this way as an alternative analysis, even if, as in this case, it concludes that the hypothetical scenario is unlikely to occur.

Want to know more?

• 'Federal Court sets the standard for corporate climate commitments (2 March 2026)
• Climate litigation in Australia: Key developments in 2025 and what's ahead for 2026 (19 February 2026)
• Public interest key to Santos' success in the National Native Title Tribunal (9 September 2025)
• Pabai v Commonwealth: Climate change government responsibility and what it means for business (16 July 2025)
• Greenwatch: Does a German appeal court decision provide a blueprint (24 June 2025)
• Dutch Court of Appeal overturns Shell emissions ruling (13 November 2024)

Other author: Alexander Zahar, Lawyer.

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