Brad Wylynko is a partner with Clayton Utz and leads the firm’s environment and planning team in Western Australia.

The EPA is sending mixed signals on the Gorgon Gas Project, which Chevron is hoping to expand on WA’s Barrow Island.

The Western Australian EPA on April 30 released its advice and recommendations to the state Minister of Environment regarding Chevron Australia’s proposal to revise and expand the Gorgon natural gas and liquefied natural gas project on Barrow Island.

While the EPA restated its in-principle opposition to any industrial development on Barrow Island, a Class A nature reserve with high environmental and conservation values, it also gave conditional support to the Gorgon expansion proposal in an assessment report that is, in a number of respects, quite unusual.

Chevron proposes to develop the Greater Gorgon gas fields some 150km off the north-west coast. As one of the largest gas developments in Australia, the project has been the focus of extensive environmental assessment including an initial ‘environment, sustainability and economic review’ in 2003, an EPA review in 2006 and the most recent review of the expansion. Throughout the entire process, the EPA has consistently rejected the use of Barrow Island for the Gorgon development.

Despite this, the WA Minister for the Environment approved the original two train proposal in 2007, imposing conditions that included establishing a panel of experts to consider marine turtles, construction and dredging, and quarantine.

The latest proposal involves a third train capable of producing an additional five million metric tonnes of LNG per annum. In its April report on the expansion, the EPA continued its in-principle opposition to any industry on Barrow Island, but significantly it also concluded Chevron’s revised and expanded proposal could meet the EPA’s environmental objectives if accompanied by stringent conditions.

The unusual feature of this recommendation is that rather than itself recommending implementation conditions, the EPA has left those conditions to the WA Appeals Convenor, with input from expert panels. Under the Environmental Protection Act 1986 (WA), if the EPA supports a proposal, as WA’s pre-eminent body of environmental expertise, it is required to recommend implementation conditions, and it may provide a draft ministerial statement. This serves as the basis for the minister’s decision, and importantly also provides a reference point for any appeals.

However, in the case of the Gorgon expansion proposal the EPA has neither provided specific implementation conditions (although it provided a framework for those conditions), nor a draft ministerial statement. It has instead effectively delegated this role to a third party expert panel or panels.

Enter the Convenor
The involvement of the Appeals Convenor in considering an EPA assessment report at first instance, and in initially drafting recommended proposal conditions, is unusual.

It is also unclear under what power, absent an appeal, the Appeals Convenor can even do so. It appears the EPA rather presciently anticipated an appeal related to conditions as an appeal provides the Convenor its only power to recommend proposed conditions.

A further unusual aspect of the report is a request by the EPA that if the particular features of the project the EPA considers should be subject to conditions recommended by the Appeals Convenor are not applied to the Gorgon expansion proposal, then the minister should remit
the proposal back to the EPA for further investigation and advice.

Although this is not common practice, the act does provide that a proposal, after assessment by the EPA but before the minister publishes her statement, may be sent back to the EPA for re-assessment. However, it is questionable whether the minister would refer the matter to the EPA for further assessment in circumstances where she has not agreed with the EPA’s recommendations in the first place.

The EPA report was subject to a two-week appeal period and as appeals have been lodged, it would appear open
to the Appeals Convenor to provide recommended conditions. It will then be up to the Minister for the Environment, Donna Faragher, to determine whether or not the expanded Gorgon proposal is environmentally acceptable.

For more information contact Brad Wylynko by email at bwylynko@claytonutz.com