Woodside Energy's plans for its Scarborough Gas Project off the north-west coast of Western Australia have suffered a setback after a Federal Court ruling in favour of a traditional owner on Thursday.
The energy giant had been hoping to begin underwater surveying for the US$12 billion LNG project off the Burrup Peninsula, 375km offshore, earlier this month, but was forced to delay those plans after a legal challenge from Mardudhunera woman Raelene Cooper, who argued she had not been adequately consulted.
On Thursday in the Federal Court in Perth, Justice Craig Colvin agreed, saying regulator, the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA), did not have statutory power to approve Woodside's application for seismic blasting off the coast.
NOPSEMA gave approval for the seismic blasting on July 31, attaching a condition that further consultation needed to be carried out before blasting began.
Justice Colvin found NOPSEMA had erred because the consultation should have been carried out before the approval was granted and set aside the regulator's decision.
The energy giant was due to begin testing on September 14 before a temporary injunction was granted by Justice Colvin after the challenge by Ms Cooper.
A Woodside spokesperson said on Thursday it would continue to work with NOPSEMA to have an accepted environmental plan in place before commencing the seismic survey.
"We note the decision by the Federal Court today which held that NOPSEMA's decision to accept the Scarborough Project's 4D B1 Marine Seismic Survey Environment Plan with conditions was an invalid exercise of its powers," they said.
"The decision did not in any way criticise any action by Woodside.
"We have consulted extensively on our environment plans, dedicating time and effort so our approach to environmental management and environmental planning consultation meets our current understanding of regulatory requirements and standards.
"We are continuing our engagements with all relevant stakeholders on the seismic survey environment plan and our other project environment plans."
Seismic testing involves special airguns blasting compressed air, creating pulses of sound directed at the sea floor that penetrate underlying rock layers.
The process creates sound patterns that can help predict geological layers, and oil and gas reserves, beneath the seabed.
According to the Environmental Defender's Office, which is representing Ms Cooper, seismic blasting can damage the senses of marine animals such as whales and turtles, and restrict their ability to communicate, causing stress, displacement from habitat, physical injuries and death.
Ms Cooper said Woodside's seismic blasting was due to take place in areas of high cultural significance and she had not had a chance properly explain this to Woodside, prompting the initial judicial review of NOPSEMA's approval.
The case follows a decision by the Federal Court to overturn a key approval for Santos' $4.7 billion Barossa offshore gas project late last year.
The decision was taken after the court considered the way Tiwi Traditional Owner and Elder Dennis Murphy Tipakalippa was consulted by Santos.
On Tuesday, Woodside lawyers had told Justice Colvin the delay to the seismic survey was significantly costly and Ms Cooper did not have standing to obtain orders to restrain an alleged offence under environmental regulations.
NOPSEMA barrister Nicholas Wood said the regulator was within its rights to accept Woodside's environmental plan, with conditions including further consultation.
Justice Colvin signalled in court on Tuesday there may be a distinction between initial and ongoing consultation.
"How will the regulator know whether it's a suitable mechanism for dealing with the environmental risk if it doesn't know, and does not have reported to it, the outcome of the consultations as to the environmental matters that need to be addressed?" he posed.
