Sword or a shield? The changing dynamic of the regulatory landscape for Australian gas projects

Abstract

From increased domestic opposition to CSG, to international legal challenges about the project financing of gas projects, the Australian gas industry is under siege from numerous stakeholders—communities, domestic governments and non-government organisations both in Australia and internationally. What this has meant for the industry is a significantly increased risk of in doing business in Australia. A key reason for this elevated risk is that stakeholders are becoming increasingly savvy in the legal and quasi-legal avenues for challenging a project—and regulators are increasingly providing stakeholders the tools to do this. During the past two years, we have seen a number of regulatory regimes used, not simply to protect stakeholders’ rights under these regimes, but as part of a strategy to undermine the legal, financial and reputational foundations of project as a whole. These regimes include:

1. the domestic and international social and environmental impact standards for the financing and assessment of projects;

2. land access and compensation regimes; and,

3. the native title and cultural heritage protection regimes.

As a response to stakeholder action, regulators are also becoming more reactive and regulations more proscriptive. This extended abstract examines the financial and operational impacts of using regulatory regimes as a sword, rather than a shield, against gas proponents, using case studies including the challenge to US Ex-Im’s funding of the APLNG project and the James Price Point project. This extended abstract highlights how, in this new legal environment, proponents must balance compliance with relationships, domestic pressures with international standards and cost with exposure to risk.