Unconventional Natural Gas in the Courts: An Overview

Abstract

This article provides an overview of the avenues that have been used or could be used to litigate issues relating to the extraction of, and production of energy from, unconventional gas. It illustrates the wide variety of cases that may be brought in relation to the approval or operation of unconventional gas projects or activities, ranging from private actions (eg, in tort, contract and property law) to actions that are public in nature (eg, public interest environmental litigation, criminal prosecutions and other prosecutions relating to occupational health and safety). Generally speaking, four types of case have been most common: (1) disputes between landholders and gas companies; (2) disputes between rival gas companies; (3) disputes between regulatory agencies or authorities and gas companies; and (4) public interest litigation by environmental non-governmental organisations seeking judicial review of government decisions relating to unconventional gas projects or activities. This article concludes by reflecting on the likely forms such litigation may take in the future and the role the courts may play in the broader scheme of energy and environmental governance.

Additional information

Notes on contributors

Brian J Preston

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Brian J Preston is Chief Judge, Land and Environment Court of New South Wales. The author gratefully acknowledges the assistance of his tipstaff, Guy Dwyer, in the research and writing of this article. He can be reached at [email protected].

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This article is based on a keynote address delivered to the CleanUp 2013 Conference - 5th International Contaminated Site Remediation Conference, 17 September 2013, Melbourne, Australia.