Judicial review in environmental law – in the public interest or a public nuisance?

As the Federal Government ramps up its productivity agenda, the streamlining of environmental approvals has come under the spotlight. Speedier approvals, while helpful, will still be open to judicial review.

For most of this century, public debates about judicial review have centered around expanding or limiting the ability of environmental groups to challenge the approval of major fossil fuel export projects. But the past few years have seen a plot twist: judicial review is now being leveraged to challenge and delay the rollout of clean energy infrastructure.  

This twist is creating headaches for governments seeking to meet their 2030 emissions targets and is not going away anytime soon no matter how streamlined approvals become.   

Judicial review in environmental law

Access to judicial review is guaranteed through section 75(v) of the Australian Constitution which empowers the High Court to hear legal proceedings that challenge a decision of the Commonwealth. Judicial review involves a relatively narrow assessment of whether the decision-maker made an error of law. It is separate to merits review which means assessing whether the correct and preferable decision was made. Access to merits review is conferred through statute and not guaranteed in the Constitution.

While this might seem straightforward, access to judicial review is not uninhibited. The Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) makes clear that only a “person aggrieved” may seek judicial review and a subsequent body of jurisprudence has emerged regarding the meaning of “person aggrieved”.

The seminal case on judicial review involves an environmental group (incorporated in the ACT) challenging a tourist development project (in Queensland): Australian Conservation Foundation v Commonwealth. In determining that the Australian Conservation Foundation (ACF) did not have legal standing to commence judicial review, the High Court stated:

“I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.” (Justice Gibbs, paragraph 20).

This “special interest” test still stands at common law and has been relaxed in subsequent cases to make it easier for applicants to claim judicial review. For the most part though, the ability to access judicial review in Commonwealth environmental cases is now determined by legislation: the Environment Protection and Biodiversity Act (“EPBC Act”). Specifically, section 487 provides “extended standing for judicial review” by allowing for any person to meet the definition of “aggrieved”, so long as they have for the past two years engaged in activity related to the protection of the environment.

The other avenue to judicial review is through the states. Major economic projects are subject to state as well as federal environmental assessments, which means parties have multiple entry points for bringing a court challenge against government decisions.

Some states have chosen to go beyond the extended standing provision provided at the Commonwealth level. New South Wales, for example, has a dedicated Land and Environment Court that specialises in environmental law matters and has equal standing with the NSW Supreme Court. It also allows some government decisions to be subject to merits review. Other states are more conventional, only allowing for judicial review through appeal to the state’s Supreme Court. 

The confusing web of legal challenges that arise through having multiple environmental assessment processes can be illustrated through the Woodside Scarborough gas export project in Western Australia. 

Judicial Review of Woodside’s Scarborough Project

The politics of judicial review

For some time now, extended standing in environmental law has faced criticism that it is being misused by environmental groups to “disrupt and delay” major economic development projects. These criticisms reached a tipping point in 2015 when the Mackay Conservation Group successfully challenged the Commonwealth’s approval of the Adani coal mine project in Queensland.

In response, then Federal Environment Minister Greg Hunt proposed a Bill that would repeal section 487 of the EPBC Act, stating it amounted to “green lawfare”. The Bill ultimately never made it into law, but it did trigger a Senate Committee and with that a range of commentary about the effect of repealing section 487.

The commentary was mostly critical of the proposal, stating that the law already has protections against misuse of judicial review, namely court cost orders and vexatious litigant listings. Others pointed out that repealing section 487 would be counterproductive because access to judicial review will still exist at common law and courts would now need to spend inordinate time interpreting case law to each individual case, exacerbating project uncertainty and delay.

The 2020 independent review of the EPBC Act (known as the “Samuel Review”) also contemplated the impacts of judicial review on project delivery. The Samuel Review concluded that there was little evidence of judicial review being gamed, even in jurisdictions like NSW with more liberalised standing, and that project delays were attributable to other problems in the environmental approval process.

Judicial review and the energy transition

These findings came at a time when the political discourse surrounding judicial review was black and white: green environmental activists in one corner versus pro-development forces in the other. Court challenges also centered around a relatively small number of high-profile, mega resource projects.

The past few years, however, have seen a sharp and sudden turn to a less dichotomous world. Regional communities, with backing from some conservative forces, have started pursuing judicial review to stymie the rollout of renewable generation and transmission infrastructure. Environment groups are finding themselves caught in the middle, unsure whether the expressed concerns about biodiversity and amenity loss are genuine or a political ploy to disrupt the energy transition.

What’s more is that these new clean energy projects are not occasional development projects that arise from time to time. They are numerous and growing as governments rush to meet time bound climate targets.

And if that was not enough, another point of friction is emerging whereby court appeals are not necessarily the first review option. Instead, these new energy projects are subject to layers of referrals to various jurisdictional tribunals, planning bodies, and even local councils. These referrals are not limited by traditional court levers of cost orders or vexatious litigation.

New renewable projects are getting stuck in planning processes

Sitting on top of all this, of course, is access to judicial review via the state and federal courts.  Victoria is the first state to “test the waters” of limiting access to judicial review when it submitted that a regional community alliance had no standing to challenge the Minister’s decision to fast-track approval of transmission projects: Moorabool and Central Highlands Power Alliance v Minister for Energy and Resources. The Victorian Supreme Court upheld the community group’s right to judicial review but found that no judicial error had been made.

Some clean energy groups are already on the front foot pushing for a tightening of judicial review. The Clean Energy Investor Group, for example, submitted to a Senate inquiry last year that section 487 of the EPBC Act needs tightening because it has enabled:

"small, anti-renewable energy groups to create significant uncertainty and delays for projects. In CEIG’s view, this undermines the original intent of Section 487, which is to allow parties with a genuine and consistent commitment to environmental conservation to challenge decisions under the EPBC Act. CEIG believes this could be addressed by providing clearer guidelines and limitations on the extended definition of a 'person aggrieved' under Section 487."

If their concerns are true, they are about to get a lot bigger. Right now, access to judicial review through section 487 is limited, ironically, by there being so few decisions to appeal against. Recent research found “not one of the 76 renewables projects needing federal environmental assessment in NSW, Victoria or Queensland in 2023 or 2024 has received final approval”.

So, if streamlined approvals do come, so will the appeals.  

Can judicial review be streamlined too?

Governments are currently banking on improved community engagement processes alleviating community concerns about the impacts of clean energy infrastructure projects. The Federal Government is putting together its clean energy Developer Rating Scheme while Queensland is mandating renewable developers have Community Benefit Agreements in place before lodging a development application.

These commitments sound nice but also create contradictions. They add significant time to the project’s development when governments are simultaneously pushing for renewable generation to be deployed quicker. These two pressures cannot co-exist forever, and something will eventually give depending on the political priorities of the day.

There may not be any silver bullet solution to these tensions but there are still options available to policymakers to improve judicial review arrangements.

Improve transparency of decisions made – probably the least offensive reform is to require decision-makers to publish clearer and more comprehensive reasons for their decisions. Greater availability of information may not appease community concerns but could at least hasten court assessment of whether an error of law has been made.

Link standing to the objection or community engagement process – an unofficial reason for maintaining extended standing is the difficulty in assessing a claim of a direct link to greenhouse gas impacts that arise through a fossil fuel project. This is not the case for clean energy infrastructure, where claims about impacts to biodiversity, flora and fauna, amenity loss etc. can be more easily directly measured and assessed.

It naturally follows that objection processes, especially at the sub-judicial level, should be tied to having a direct link to the community. This can involve leveraging the community engagement frameworks that governments are putting in place.

For example, for an objection to be valid, the person should show they reside in proximity to the community and regularly participate in local forums or sessions with the project developer. The Federal Government could also consider whether a body like the Net Zero Economy Authority can play a larger role in overseeing genuine community engagement.

Centralise decision-making to reduce forum shopping – multiple approval processes (and decision-makers) allow objectors to forum shop, with cost or vexatious litigant orders rarely used as deterrence.

The Commonwealth could replicate the model used in NSW and consider establishing its own Environment Court that is part of the Federal Circuit. In addition to establishing its jurisdiction, it would require working with the states to confer environmental approval powers to the federal level to centralise decision-making for significant development projects.

States should also look to tidy up their layers of planning bureaucracy. NSW particularly should consider tightening its objection process and use other levers rather than IPC referral to monitor community concerns.

Shift to regional environment assessments – rather than assessing projects on an individual basis, governments should conduct regional assessment planning. This means establishing zones (presumably linked to existing state renewable energy zones) that are suitable for development. Projects located within those zones could have simplified planning rules applied (e.g. if in NSW, not subject to IPC referral or more broadly, directed to the Commonwealth for approval), whereas those located outside would still go through ordinary individual assessment.