Scarborough gas & Rising tide share a structural constraint

Between 2022 and 2025, two legally distinct matters unfolded in Australia that tested how existing law accommodates climate impacts and climate-motivated participation. One arose within federal environmental approval processes. The other arose from state-based administrative and criminal regulation of protest activity.

Although they engaged different courts, statutes and remedies, both matters encountered the same underlying difficulty: the law was being asked to address climate consequences and climate urgency through frameworks not designed to do so directly.

In each case, participants asserted a right to involvement – environmental organisations seeking to influence approval decisions, and protestors seeking to disrupt activity they viewed as contributing to climate harm. In each case, the courts were required to decide not the substance of climate arguments, but the legal limits of the statutory tools available to them.

matter one - how the scarborough litigation arose

The Scarborough gas project represented one of the largest proposed offshore gas developments in Australia. Its approval pathway was governed by the Environment Protection and Biodiversity Conservation (EPBC) Act, a statute structured around impacts on matters of national environmental significance, rather than climate change as such.

The Australian Conservation Foundation (ACF) commenced proceedings in 2022 after the Commonwealth approved aspects of the project without assessing downstream greenhouse gas emissions associated with the extraction, processing and export of gas. ACF’s involvement was grounded in its role as a public-interest environmental organisation seeking to ensure that climate consequences were not excluded from environmental decision-making.

The difficulty facing ACF was not factual but legal. The EPBC Act does not expressly require assessment of downstream emissions, nor does it clearly address climate impacts occurring outside Australia. The litigation therefore depended on persuading the court that the statutory concept of “impact” could, or should, extend to those consequences.

That question sits at the boundary of judicial review. Courts reviewing administrative decisions under the EPBC Act do not substitute their own scientific or policy judgments. They examine whether the decision-maker complied with statutory requirements. Where the statute is silent or ambiguous on climate impacts, the scope for judicial intervention is narrow.

what was legally considered - and what was not

The Scarborough proceeding did not involve a merits review of the project or a judicial assessment of climate science. The Federal Court was being asked to determine whether the approval process was legally deficient because certain impacts were not considered.

Before those questions were resolved, the proceeding was discontinued in August 2024. The reasons for discontinuance were not determined by the court and may have included litigation risk, strategic considerations, or parallel regulatory developments.

As a result of that discontinuance, the Federal Court made no substantive findings on whether downstream emissions must be assessed under the EPBC Act, or whether overseas climate impacts fall within its scope.

As a result, the court did not answer the substantive questions raised. No legal finding was made on whether downstream emissions must be assessed under the EPBC Act, or whether overseas climate impacts fall within its scope. The outcome left existing uncertainty intact.

The case illustrates a structural problem: where litigation is discontinued or constrained, courts are unable to clarify the law, even where the issues raised are of national significance.

Matter Two – How the Newcastle protest litigation arose

The Rising Tide litigation arose from a different form of participation: direct action. The People’s Blockade was designed to disrupt coal exports from the Port of Newcastle, drawing attention to the climate impacts of fossil fuel exports.

In advance of the protest, Transport for NSW exercised powers under the Marine Safety Act 1998 (NSW) to impose a maritime exclusion zone. Rising Tide challenged the legality of that decision, arguing that the power was directed at managing concrete maritime safety risks, not at preventing protest activity or imposing broad access restrictions.

Here, the difficulty was again structural. Administrative law allows courts to scrutinise whether a statutory power has been exercised within its legal limits. It does not allow courts to rewrite legislation to accommodate protest rights or climate objectives not expressed in the statute.

What the court addressed – and what it did not

In November 2024, the Supreme Court of NSW quashed the exclusion notice. The court’s reasoning turned on statutory interpretation: the power relied upon did not authorise a generalised exclusion zone of the breadth imposed.

Importantly, the court did not rule on the legitimacy of the protest itself, nor did it create a general right to maritime protest. The decision addressed only the validity of the specific administrative instrument.

The judgment did not legalise protest conduct, nor did it prevent authorities from enforcing other criminal or maritime safety laws governing conduct in NSW waters.

Following the judgment, enforcement action proceeded under other legal regimes. Participants were arrested and charged under criminal and maritime safety laws. Those prosecutions continued independently of the administrative law outcome.

This separation reveals another structural limit: successful administrative law challenges do not displace parallel criminal law frameworks governing conduct.

Participation asserted, but only partially accommodated

In both matters, participants asserted involvement in response to climate harm:

• ACF sought to expand the scope of environmental assessment.

• Rising Tide sought to physically intervene in fossil fuel supply chains.

  
  

The law responded cautiously in each case. In the Scarborough litigation, the court was not permitted to expand the statute beyond its text. In the Newcastle litigation, the court constrained executive overreach but did not immunise protest activity from enforcement.

Participation was recognised procedurally, but not substantively transformed into broader climate rights.

Why the outcomes were what they were

The outcomes were shaped by institutional limits, not indifference.

• The Scarborough matter ended without findings because the EPBC Act does not clearly resolve the climate questions raised, and the proceeding did not run to judgment.

• The Rising Tide matter succeeded only to the extent of invalidating an unlawful administrative act, while leaving intact the criminal law’s capacity to regulate conduct.

In both cases, courts preserved the existing statutory balance rather than remaking it.

The unifying lesson

Taken together, these matters show that Australian climate disputes are often resolved at the edges of legal authority, not at the centre of climate policy.

Courts can:

• Enforce statutory limits,

• Police procedural legality,

• And, protect agreed pathways.

They cannot:

• Supply missing legislative direction,

• Convert protest urgency into legal entitlement,

• Or, fill structural gaps through interpretation alone.

  
  

Until legislation more directly addresses climate impacts and climate-motivated participation, disputes of this kind will continue to reach courts that are capable only of partial answers.