Oil and Gas Drilling in the Great Australian Bight and Australia's

ALASKA CALIFORNIA FLORIDA MID-PACIFIC NORTHEAST NORTHERN ROCKIES

NORTHWEST ROCKY MOUNTAIN WASHINGTON, D.C. INTERNATIONAL

Oil and gas drilling in the Great Australian Bight and Australia’s international legal obligations to protect migratory species

Introduction

1. A number of companies are investigating the use of deepwater wells to exploit petroleum reserves in the Great Australian Bight, a unique marine environment off the southern coast of Australia that provides habitat for endangered and vulnerable migratory species. One of these companies, BP Developments Australia Pty Ltd (“BP”), proposes to drill four exploration wells and is currently seeking, as required by regulation, to have its environment plan for these activities accepted by the National Offshore Petroleum Safety and Environmental Management Authority (“NOPSEMA”).

2. This document assesses the degree to which offshore oil and gas drilling and associated activities in the Great Australian Bight may be inconsistent with Australia’s international legal obligations arising under the Convention on the Conservation of Migratory Species of Wild Animals (“Migratory Species Convention” or “Convention”).

3. This document addresses generally matters relating to the following Terms of Reference of the inquiry of the Senate Standing Committees on Environment and Communications into Oil or Gas Production in the Great Australian Bight:

The potential environmental, social and economic impacts of BP’s planned exploratory oil drilling project, and any future oil or gas production in the Great Australian Bight, with particular reference to: a. the effect of a potential drilling accident on marine and coastal ecosystems, including: i. impacts on existing marine reserves within the Bight, ii. impacts on whale and other cetacean populations, and iii. impacts on the marine environment, … c. current research and scientific knowledge; d. the capacity, or lack thereof, of government or private interests to mitigate the effect of an oil spill; and e. any other related matters.1

4. The Great Australian Bight provides habitat for many species protected under the Migratory Species Convention. As a party to the Convention, Australia has undertaken to prohibit the “taking” of endangered migratory species and to “endeavour” to, among other things, provide for the immediate protection of these species, conserve habitats that are important for removing them from danger of extinction, and, to the extent feasible and appropriate, prevent, reduce or control factors likely to endanger them further. However, offshore drilling activities and associated risks are likely to cause a range of harms to migratory species and their habitats,

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such as habitat degradation, behavioral modification, and even injury or mortality from leaks or spills of oil or other chemicals, or, for whales and other cetaceans who rely on sound to communicate, navigate, and feed, from the noise associated with drilling activities. Allowing these harms would be inconsistent with Australia’s commitments under the Migratory Species Convention including, among others, the obligation to prevent harassment of listed species.

5. Because of the possible harms to migratory species, Australia must carefully assess the potential impacts of each proposed offshore drilling activity to determine whether it would cause harms that would place Australia out of compliance with its commitments under the Convention, and to demonstrate to the international community that it is complying with those commitments. Under the current regulatory framework, Australia has delegated the preparation of an environmental assessment to the proponent of offshore drilling activities. This does not, however, discharge Australia’s international commitments; if a proponent’s environmental assessment would be insufficient to demonstrate that its proposed activities will not undermine Australia’s commitments under the Convention, Australia may not rely on that assessment.

6. In February 2014, in accordance with a “Strategic Assessment,” the Minister for the Environment approved all offshore drilling activities in Commonwealth waters. As a consequence, the only environmental assessment specific to each proposed offshore drilling activity is contained in an “environment plan” prepared by the proponent, which does not have to be made public. The regulatory framework provides no guidance for the specific matters that must be established to properly assess impacts on migratory species and their habitat, such as migratory routes, importance of the habitat to the species, and use of the area for breeding, calving, resting and feeding. Furthermore, the proponent of the project determines what constitutes an acceptable level of environmental impact on migratory species and their habitat. BP’s current proposal to drill four exploration wells demonstrates these shortcomings: there can be no public scrutiny of its environmental assessment, and the summary it made available does not contain sufficient information to support its conclusions that, other than in the case of a well blowout, its proposed activities would not have any significant impact.2

7. For the reasons described above, offshore drilling activities in the Great Australian Bight are likely to be inconsistent with Australia’s commitments under the Migratory Species Convention. Because of this, Australia must ensure that a comprehensive and transparent environmental assessment specific to migratory species and their habitat is conducted in relation to each proposed drilling activity before permitting any offshore drilling activities to proceed.

The Convention on the Conservation of Migratory Species of Wild Animals

8. Because migratory species are both very important to biodiversity and particularly vulnerable, their protection requires special attention:

Migratory species have distinct conservation needs, associated in particular with their temporal cycles and transboundary migration patterns. …Migratory species are a significant component of biodiversity in general, underpinning ecological systems. …They form a substantial proportion of the world’s genetic variety, having evolved in particularly intricate interrelationships with plant and other animal species; and they play essential roles in ecosystem functioning and dynamics. Their multi-dimensional

connectedness gives them a special role as ecological keystone species and indicators of the linkages between ecosystems and of ecological change.

These same attributes mean that migratory species have their own special vulnerabilities. Migration journeys expose them to heightened survival risks, and habitat requirements are often a complex mix of different components in breeding areas, non-breeding areas, and the places in between. Concentrations of large numbers of individuals during specific periods at specific sites, also increases the risk of serious impacts from negative pressures at those sites. Barriers to migration pose special challenges, whether or not in the form of physical obstacles, which may cause direct mortality, or fragmentation of ecological resources disrupting movement from one place to another.3

9. For these reasons, the Migratory Species Convention (also known as the Bonn Convention) aims to protect, and improve the conservation of, migratory species and their habitat.4

10. Recognizing that States “are and must be the protectors of … migratory species … that live within or pass through” their jurisdiction, and that “conservation and effective management of migratory species … require the concerted action of all States,”5 the Convention establishes protections for two categories of migratory species, which are listed in Appendices I and II to the Convention.6

11. For migratory species that are endangered – meaning the species is listed in Appendix I to the Convention7 on the basis of being “in danger of extinction through all or a significant portion of its range”8 – parties that “exercise jurisdiction over any part of the range of that migratory species,” known as “Range States,”9 “shall prohibit the taking of animals belonging to such species,”10 with limited exceptions (e.g., taking for scientific purposes or to enhance the propagation of the species).11 The Convention defines “taking” as “taking, hunting, fishing, capturing, harassing, deliberate killing, or attempting to engage in any such conduct.”12

12. In relation to endangered migratory species, Range States must also “endeavour”: • “to provide immediate protection” for the species; • “to conserve and, where feasible and appropriate, restore those habitats of the species which are of importance in removing the species from danger of extinction”; • “to prevent, remove, compensate for or minimize, as appropriate, the adverse effects of activities or obstacles that seriously impede or prevent the migration of the species”; and • “to the extent feasible and appropriate, to prevent, reduce or control factors that are endangering or are likely to further endanger the species….”13

13. Appendix II identifies migratory species with “unfavourable conservation status and which require international agreements for their conservation and management, as well as those which have a conservation status which would significantly benefit from the international cooperation that could be achieved by an international agreement.”14 For these species, the Convention requires Range States to “endeavour to conclude” separate agreements, the object of which is to “restore the migratory species concerned to a favourable conservation status or to maintain it in such a status.”15 Among others, Australia is party to a binding agreement

concerning albatrosses and petrels, and non-binding memoranda of understanding concerning migratory sharks and cetaceans, all of which are present in the Great Australian Bight.16 Notably, the Agreement on the Conservation of Albatrosses and Petrels requires parties to “prohibit the deliberate taking of, or harmful interference with, albatrosses and petrels, their eggs, or their breeding sites.”17

14. Although the Convention does not explicitly require assessment of the impacts of activities on protected species and their habitat, such an assessment is essential to understanding the implications of actions that might violate or undermine compliance with commitments made under the Convention. Indeed, the Conference of the Parties to the Convention, which is the Convention’s decision-making body,18 has expressed concern that “avoidable detriment to migratory species often occurs through lack of adequate prior assessment of the potential environmental impacts of projects … carried out in a way that is systematic and formally taken into account in decision-making,”19 and has emphasized

the importance of good quality impact assessment … as [a] tool[] for implementing Article II(2) of the Convention on avoiding endangerment of migratory species and Article III(4) of the Convention on protection of Appendix I species, and as [an] important element[] to include in [agreements concluded in respect of Appendix II species] … [and has urged] Parties to include in [environmental impact assessment,] … wherever relevant, as complete a consideration as possible of effects involving impediments to migration, …of transboundary effects on migratory species, and of impacts on migratory patterns or migratory ranges.20

15. Furthermore, specifically in relation to the impacts of underwater noise on migratory species (such as that which may be created by offshore drilling activities21), the Conference of the Parties has urged parties to “undertake relevant environmental assessments on the introduction of systems which may lead to noise associated risks for marine mammals,”22 and to “ensure that Environmental Impact Assessments take full account of the effects of activities on cetaceans and to consider potential impacts on marine biota and their migration routes and consider a more holistic ecological approach already at a strategic planning stage.”23

Australia’s implementation of its commitments under the Migratory Species Convention and the regulation of offshore oil and gas activities

16. Australia ratified the Migratory Species Convention in 199124 and implements it through several legislative and policy instruments, including the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“EPBC Act”).25 Relevantly, the EPBC Act prohibits actions that have, will have, or are likely to have a significant impact on a migratory species listed under the EPBC Act (which includes species protected by the Migratory Species Convention) without assessment and approval in accordance with the EPBC Act.26

17. However, in February 2014, the Minister for the Environment approved all petroleum activities in Commonwealth waters undertaken in accordance with a “Strategic Assessment” endorsed under the EPBC Act.27 The consequence of this is that each proposed offshore oil and gas activity no longer needs to be assessed individually under the EPBC Act, and NOPSEMA is the sole assessor for offshore petroleum activities in Commonwealth waters.28 Since February

2014, proponents of offshore petroleum activities must submit for acceptance by NOPSEMA an environment plan, and all activities must be conducted in accordance with an accepted environment plan.29 Each environment plan must include an environmental impact assessment that has been prepared by the project proponent30 and is the only such assessment specific to the proposed activity. Among other things, the plan must: • “describe the existing environment that may be affected by the activity … and … include details of the particular relevant values and sensitivities (if any) of that environment … [which] may include … the presence of a listed migratory species within the meaning of [the EPBC Act];”31 • “include details of the environmental impacts and risks for the activity … and … an evaluation of all the impacts and risks, appropriate to the nature and scale of each impact or risk … and … details of the control measures that will be used to reduce the impacts and risks of the activity to as low as reasonably practicable and an acceptable level;”32 and • “set environmental performance standards for the control measures … and … set out the environmental performance outcomes against which … performance … in protecting the environment is to be measured … and … include measurement criteria … to determine whether each environmental performance outcome and environmental performance standard is being met.”33

18. The regulations do not provide guidance as to what would satisfactorily demonstrate that the impacts and risks of the activity will be “as low as reasonably practicable and an acceptable level.” Instead, the Strategic Assessment states:

Demonstrating acceptability [of impacts and risks] is achieved by evaluating environmental impacts and risks (including direct and indirect impacts from operational and potential emergency conditions) against acceptable levels that are defined and justified by the [proponent]. Demonstrating that environmental impacts and risks are ALARP [as low as reasonably practicable] requires the provision of evidence that the impacts and risks have been modified to a level that is ALARP.

Demonstrating that the environmental impacts and risks of an activity will be reduced to ALARP and will be of an acceptable level requires the [proponent] to evaluate all impacts and risks of the activity in the context of the environment in which the activity is to take place.34

19. NOPSEMA must accept an environment plan that meets specified criteria, including that it “demonstrates that the environmental impacts and risks of the activity will be reduced to as low as reasonably practicable … and … will be of an acceptable level” and “provides for appropriate environmental performance outcomes, environmental performance standards and measurement criteria.”35 In relation to migratory species, the Strategic Assessment provides that NOPSEMA will not accept an environment plan that proposes activities that “will result in unacceptable impacts to a migratory species or an area of important habitat for a migratory species.”36

20. There is no requirement that the environment plan be made public. Instead, after NOPSEMA has accepted an environment plan, the proponent must submit a summary of the plan to

NOPSEMA for public disclosure.37 This means that the proponent or the regulator is not required to publicly release any information about the contents of the environment plan until after its acceptance by NOPSEMA. The summary need only contain limited information about the environmental assessment: it must include a “description of the receiving environment,” “details of environmental impacts and risks,” and “a summary of the control measures for the activity … [and] for ongoing management of … environmental performance.”38

21. It is important to note that assessment under this regulatory regime does not necessarily discharge Australia’s commitments under the Migratory Species Convention. If the proponent’s satisfaction of the regulatory requirements outlined above would not satisfy the Convention’s requirements, Australia’s reliance on the regulatory regime will place it out of compliance with the Convention. This is discussed below at paragraphs 30 to 39.

Migratory species in the Great Australian Bight and BP’s current drilling proposal

22. BP currently proposes to drill four exploration wells in the Great Australian Bight.39 It originally submitted a referral in May 2013 under the EPBC Act, due to the project’s potential impacts upon, among other things, migratory species.40 However, after the Minister for the Environment’s approval of all petroleum activities in February 2014,41 this referral became unnecessary.42 BP submitted an environment plan for the proposed drilling activities to NOPSEMA in October 2015.43 At that time, BP also released a draft summary of the plan (“Environment Plan Summary”).44 In November 2015, NOPSEMA gave BP the opportunity to modify its Environment Plan, which means that NOPSEMA was not reasonably satisfied that the plan met the criteria for acceptance.45 BP resubmitted a revised environment plan in March 2016,46 but has not updated the Environment Plan Summary.

23. According to the Environment Plan Summary and to BP’s original 2013 referral under the EPBC Act, at least 25 Appendix I or II species are or may be found in the Great Australian Bight, including whales, turtles, great white sharks, albatrosses, and petrels.47 A list of these species is at Attachment 1 to this document. Accordingly, Australia is a Range State under the Migratory Species Convention for these species, and has the obligations in relation to these species discussed above at paragraphs 10 to 15.

Offshore oil and gas activities may cause harms to migratory species and their habitat that are inconsistent with the protections of the Migratory Species Convention

24. As described above at paragraphs 10 to 15, Australia has made a number of commitments through the Migratory Species Convention relating to the protection of migratory species, such as those found in the Great Australian Bight, and their habitat. However, offshore drilling activities, and any accidental spills resulting from these activities, are likely to cause harms to migratory species and their habitat that are inconsistent with Australia’s fulfillment of its commitments.

25. Australia must prohibit the “taking” of – which includes “harassing”– endangered migratory species listed in Appendix I to the Convention, as well as the species of albatrosses and petrels listed in Appendix II.48 Although the Convention does not further define “harassing,” it would strain credibility to argue that harassment would not include the kinds of activities known to be

associated with offshore oil drilling. Notably, the United States’ Endangered Species Act49 also prohibits the “take” of endangered species and defines “take” to mean “harass.”50 The regulations under that law define “harass” as an “intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.”51

26. Under any definition, the activities associated with offshore drilling, including both the drilling operations themselves and the risks associated with oil leaks and spills, are highly likely to constitute “harassment” under the Convention. First, migratory species and their habitat may be harmed by the operation of offshore drilling wells and equipment, including by the installation of drill rigs, the operation of drills, the activities of support vessels, and discharges of substances such as drilling cuttings and fluids, cement, and hydraulic fluids.52 For example, as the Secretariat of the Migratory Species Convention has acknowledged, the noise created by activities such as these “is a form of pollution that affects [migratory species] by degrading habitats and disturbing communication, group cohesion or even leading to injury and mortality, potentially over large distances.”53 Whales and other cetaceans that use sound to communicate, navigate, and feed, are particularly vulnerable to noise, and typically respond to noise pollution by avoiding noisy areas.54 Notably, courts in the United States have recognized that whales may harmed by noise from shipping and seismic airguns.55 Also, the physical presence of rigs and support vessels may result in “behavioural changes [in birds] associated with increased sound and lighting … which may affect foraging in the immediate vicinity of operations.”56 Birds may be killed or injured by colliding with offshore drilling equipment, and may also be harmed by exposure to discharges of oil and other wastes, or may avoid feeding sites due to the presence of industrial activity.57

27. Second, among the most serious sources of harm to migratory species and their habitat are accidental oil spills and the consequent clean up actions, including the application of surface and submarine dispersants that may be toxic to fauna and flora,58 in-situ burning, and assisting or euthanizing affected wildlife.59 Animals that ingest spilled oil can suffer chemical burns, irritation, and ulcers or internal bleeding.60 Spilled oil coats birds’ feathers, causing a loss of buoyancy and ability to regulate body temperature.61 Oil may contaminate food eaten by whales and other cetaceans, or affect their ability to breathe.62 The Convention’s Conference of the Parties has noted that “accidental spills and other discharges of crude and refined oils and wastes thereof represent an important hazard with well-known negative effects on nature and on different components of biodiversity” and has expressed concern about the “continuing negative impacts of such accidents and other discharges on migratory species … [and] their food sources, by the synergistic effects of lethal and chronic toxicity, thermoregulation impairment and fouling, and by habitat degradation.”63 BP acknowledges the possibility of an oil spill in the Bight,64 and another BP company was the operator of the Deepwater Horizon oil rig, which caused a spill of around 3.19 million barrels of oil in the Gulf of Mexico in 2010 that killed or injured thousands of animals, with the impacts still being felt today.65

28. Accordingly, the harms to migratory species and their habitat that may result from offshore drilling activities, and any accidental leaks or spills, are likely to constitute “takings” under the Migratory Species Convention. If any of these harms to endangered migratory species in the Great Australian Bight eventuate due to offshore drilling activities, Australia will be in violation

of its commitment under the Migratory Species Convention to prohibit the “taking” of those species.

29. In addition, if Australia does not require all available measures to prevent the harms described above from being inflicted upon endangered migratory species and their habitat, or allows activities for which there are no means of avoiding such harms, Australia would arguably be in violation of its commitment to endeavor to provide immediate protection for those species and to conserve habitats that are important for removing listed species from danger of extinction, and, to the extent feasible and appropriate, prevent, reduce or control factors likely to endanger them further. Any such harms resulting from offshore drilling may also be inconsistent with Australia’s fulfillment of its commitments under agreements and memoranda of understanding, to conserve and manage certain Appendix II species.

Australia must ensure a full and adequate assessment of the potential harms of offshore drilling activities to migratory species and their habitat

30. In light of the potentially serious harms to migratory species and their habitat that may be caused by offshore drilling activities, Australia must carefully assess the impacts of those activities on migratory species and their habitat to determine whether such activities will cause harm that would place Australia out of compliance with its commitments under the Convention, and to demonstrate to the international community that it is complying with those commitments.

31. Under the current regulatory framework, Australia has delegated the preparation of an environmental impact assessment to proponents of proposed offshore drilling activities.66 However, this does not relieve Australia of its commitments under the Migratory Species Convention; Australia must ensure that any environmental impact assessment conducted by the proponent of offshore drilling activities is sufficient to demonstrate that, if approval for the activity is granted, Australia will not violate its commitments under the Convention.

32. It is impossible to determine, under current regulations, whether Australia may rely on a proponent’s environmental impact assessment to fulfill its commitments, for the following reasons. First, the environment plan itself does not have to be released publicly, so the public is unable to adequately scrutinize whether the plan includes an adequate assessment or to provide feedback on the analysis of relevant matters such as the potential impacts of activities on migratory species. Notably, it is well recognized that public participation in decision-making on environmental matters is very important in improving the quality of decisions:

[I]n the field of the environment, improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns.67

Public participation contributes to better decisions because decision-makers have more complete information – in the form of additional facts, values, and perspectives

obtained through public input – to bring to bear on the decision process. They can then incorporate the best information and expertise of all stakeholders.68

33. Second, neither the regulations nor the Strategic Assessment provide guidance for the specific matters that must be established and considered to properly assess impacts on migratory species, taking into account their particular characteristics and vulnerabilities. For example, an adequate assessment must establish a baseline against which to assess impacts that includes identifying all species that may be present, the size and conservation status of their populations, their use of the area (such as for breeding, calving, resting, and feeding), migratory routes, and existing threats to their health, and must then assess potential impacts against that baseline. By contrast, the environment plan must simply demonstrate that the impacts and risks of the activity will be “as low as reasonably practicable and an acceptable level”69 and that the activity will not result “in unacceptable impacts to a migratory species or an area of important habitat for a migratory species.”70 There is no definition of what an acceptable or unacceptable impact is; in fact, “acceptable levels … are defined and justified” by the proponent.71

34. BP’s current proposal to drill four exploration wells demonstrates these shortcomings. In March 2016, BP provided a revised environment plan to NOPSEMA, because NOPSEMA was not reasonably satisfied that the initial plan submitted in October 2015 met the criteria for acceptance.72 Although there is no requirement that the plan be made public, or that a summary of the plan even be released until after NOPSEMA’s acceptance of the plan, BP released its draft Environment Plan Summary, which is a summary only of the initial plan submitted in October 2015, not the revised plan. Although the Environment Plan Summary contains very limited information about species and habitats in the Great Australian Bight, it does contain the following information about protected migratory species:

A biologically important area (BIA) for the great white shark is located [approximately] 130 km from the drilling area. … The National Conservation Values Atlas recognises BIA’s for a number of … mammal species within the AMBA [Area that May Be Affected by a worst-case oil spill]. … A southern right whale (SRW) BIA is located [approximately] 220 km from the drilling area. …The closest aggregation area to the drilling area is the Head of Bight, 260 km to the north. This is a significant aggregation area, where up to half the population gathers between May and November to calve. … Exact SRW migration paths away from the coast are unknown…. The entire coastline from Kangaroo Island west to the Perth Canyon is thought to be an important migratory pathway.... It is therefore possible that SRW will travel through the drilling area. … There are two recognized subspecies of blue whale in Australian waters…. Both species feed on krill, with the nearest feeding area about 95 km east of the project area…. Pygmy blue whale migration [a subspecies of Blue Whale] is thought to follow the continental shelf break, with a BIA (migration) for this species located [approximately] 8 km north of the drilling area. During the 2011-12 Ceduna 3D seismic survey, a total of 12 blue whales were observed; 10 within the drilling area and two during transit.

… The BIA [for Sperm Whales] overlaps with the northern 15 km of the drilling area. During the 2011-2012 Ceduna 3D Seismic Survey, a total of 25 sperm whales were observed during December, April and May. … BIAs for foraging exist within various parts of the AMBA for … black-browed albatross [and] Campbell albatross….73

35. The Environment Plan Summary does not demonstrate that BP undertook a risk assessment specific to migratory species and their habitat, despite noting that some activities – such as “underwater sound,” discharge of certain wastes, chemical spills, well blowouts, and oil dispersant application – may affect marine fauna.74 The Environment Plan Summary does not provide information sufficient to establish a baseline against which to assess impacts, such as what species are present, the size and conservation status of their populations, their use of the area (such as for breeding, calving, resting, and feeding), migratory routes, and other existing threats to their health, and demonstrates no analysis of potential impacts of drilling activities on the particular characteristics and vulnerabilities of migratory species. This is despite acknowledging the presence of feeding areas and migratory pathways for certain species that overlap with or are proximate to the drilling area.75 Despite not providing any supporting information, the Environment Plan Summary concludes that, other than in the case of a well blowout, its proposed activities would not have any significant impact.76

36. In addition to the lack of a baseline against which to assess potential impacts, there is extremely limited information available about the benthic habitat of the Great Australian Bight, and how any damage to benthic flora and fauna may affect migratory species. The drilling process itself disturbs the seabed at and around the point of contact as the drilling cuttings and fluids settle on the seabed,77 and this may smother benthic habitat and fauna and increase turbidity.78 However, the Environment Plan Summary acknowledges the insufficiency of existing information about the benthic habitat of the Bight and notes that a recent survey was the first systematic collection and detailed identification of macroinfauna from the deep Bight.79 Half of the species uncovered in that survey were previously unknown.80 Although disturbance of the seafloor and benthic ecosystems may affect surrounding ecosystems and the species that depend upon them, the Environment Plan Summary gives no indication that the environment plan considered these possible effects.

37. This lack of information is exacerbated by the fact that BP has yet to identify its exact well locations, because the siting and depth of wells can affect their potential environmental impacts and alter technical hazards (which are affected by, among other things, water pressure and temperature).81 The four wells that BP proposes may be drilled anywhere within a 12,100km2 area at depths ranging from 1,000m to 2,500m.82

38. Without the information described above, there can be no accurate or useful assessment of the potential impacts of BP’s proposed activities upon migratory species and their habitat, and BP’s conclusion that all potential impacts, other than a well blowout, would be of no or minor significance to migratory species is unfounded.83

39. Accordingly, without the public release of environment plans – upon which Australia is relying to assess impacts of offshore drilling activities on migratory species – it is impossible to determine whether Australia will be fulfilling its commitments under the Convention if it allows offshore drilling activities in the Great Australian Bight to proceed.

Conclusion

40. The Great Australian Bight is home to many endangered and threatened migratory species protected under the Migratory Species Convention. Offshore drilling activities in the Bight are likely to harm these species in ways that constitute “takings” under the Convention. Therefore, authorizing or allowing such activities without requiring all available measures to prevent such harm, or allowing activities for which there are no means of avoiding such harm, would arguably place Australia in violation of its commitments under the Convention. Moreover, because of the likelihood of harm to listed species, Australia must ensure that a comprehensive and transparent environmental assessment that is specific to the particular characteristics of migratory species and their habitat is conducted in relation to each proposed activity, prior to allowing that activity to proceed. The available evidence suggests that such an assessment has not been conducted.

March 30, 2016

Martin Wagner Managing Attorney, International Program Earthjustice 50 California St, Suite 500 San Francisco CA 94111

www.earthjustice.org

ATTACHMENT 1 – Species listed under the Convention on the Conservation of Migratory Species of Wild Animals that are or may be found in the Great Australian Bight84

Species Common name CMS Appendix85

Lamna nasus Porbeagle Appendix II Diomedea amsterdamensis Amsterdam Albatross Appendix I Diomedea dabbenena Tristan Albatross Appendix II Diomedea exulans Wandering Albatross Appendix II Phoebetria fusca Sooty Albatross Appendix II Thalassarche cauta Shy Albatross Appendix II Thalassarche chrysostoma Grey-Headed Albatross Appendix II Thalassarche melanophris Black-Browed Albatross Appendix II Macronectes giganteus Southern Giant Petrel Appendix II Macronectes halli Northern Giant Petrel Appendix II Balaenoptera bonaerensis Antarctic Minke Whale Appendix II Balaenoptera edeni Bryde's Whale Appendix II Balaenoptera musculus Blue Whale Appendix I Caperea marginata Pygmy Right Whale Appendix II Eubalaena australis Southern Right Whale Appendix I Megaptera novaengliae Humpback Whale Appendix I Lagenorhynchus obscurus Dusky Dolphin Appendix II Orcinus orca Orca Whale Appendices I and II Physeter macrocephalus Sperm Whale Appendix I Balaenoptera physalus Fin Whale Appendices I and II Balaenoptera borealis Sei Whale Appendices I and II Caretta caretta Loggerhead Turtle Appendix I Chelonia mydas Green Turtle Appendix I Dermochelys coriacea Leatherback Turtle Appendix I Carcharodon carcharias Great White Shark Appendices I and II

1 Parliament of Australia, Senate Standing Committees on Environment and Communications, Oil or Gas Production in the Great Australian Bight, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Environment_and_Communications/Oil_dril l_Great_Aus_Bight (accessed March 21, 2016). 2 BP, Great Australian Bight Exploration Drilling Program – Environment Plan Summary (EPPs 37, 38, 39, 40) (Rev 0, October 1, 2015) (“Environment Plan Summary”), pages 54-65, http://www.bpgabproject.com.au/external/content/document/5771/2606430/1/BP%20GAB%20drilling%20Enviro nment%20Plan%20summary%20.pdf (accessed March 29, 2016). 3 CMS-UNEP, The Strategic Plan for Migratory Species 2015-2023 (emphasis added) (adopted by the Conference of the Parties at its 11th Meeting, November 4-9, 2014, UNEP/CMS/Resolution 11.2), http://www.cms.int/sites/default/files/document/Res_11_02_Strategic_Plan_for_MS_2015_2023_E_0.pdf (accessed March 23, 2016). 4 See generally, Convention on the Conservation of Migratory Species of Wild Animals (“Migratory Species Convention”), http://www.cms.int/en/convention-text (accessed March 23, 2016). Article II(1) provides “The Parties acknowledge the importance of migratory species being conserved and of … States agreeing to take action to this end whenever possible and appropriate, paying special attention to migratory species the conservation status of which is unfavourable, and taking individually or in co-operation appropriate and necessary steps to conserve such species and their habitat.” See also Convention on the Conservation of Migratory Species of Wild Animals and United Nations Environment Programme (“CMS-UNEP”), CMS – About (“[The] CMS provides a global platform for the conservation … of migratory animals and their habitats. [The] CMS … lays the foundation for internationally coordinated conservation measures throughout a migratory range.”), http://www.cms.int/en/legalinstrument/cms (accessed March 22, 2016). 5 Migratory Species Convention, above n 4, Preamble. 6 See generally, Id., Articles III and IV. 7 Id., Appendix I (effective February 8, 2015) (available at http://www.cms.int/sites/default/files/document/Appendices_COP11_E_version5June2015.pdf (accessed March 23, 2016)). 8 Id., Article I(1)(e). 9 Id., Article I(1)(h). 10 Id., Article III(5). 11 Id., Article III(5)(a)-(d). 12 Id., Article I(1)(i). 13 Id., Articles II(3)(b) and III(4). 14 Id., Article IV and Appendix II (effective February 8, 2015) (available at http://www.cms.int/sites/default/files/document/Appendices_COP11_E_version5June2015.pdf (accessed March 23, 2016)). “Unfavourable conservation status” means, among other things, that the population dynamics data indicate that the species is not maintaining itself on a long-term basis as a viable component of its ecosystems, the range of the species is currently being reduced or is likely to be reduced on a long-term basis, and there is not (or there will not be in the foreseeable future) sufficient habitat to maintain the population of the species on a long- term basis. Id., Article I(1)(c)-(d). 15 Id., Articles IV(3) and V(1). See generally, Id., Articles IV and V. 16 See generally, Agreement on the Conservation of Albatrosses and Petrels, http://acap.aq/; Memorandum of Understanding on the Conservation of Migratory Sharks, http://www.cms.int/sharks/en; Memorandum of Understanding for the Conservation of Cetaceans and their habitats in the Pacific Island region, http://www.pacificcetaceans.org/ (all accessed March 25, 2016). 17 Agreement on the Conservation of Albatrosses and Petrels, Articles III(2) and I(2)(q), http://acap.aq/en/acap- agreement/206-agreement-on-the-conservation-of-albatrosses-and-petrels/file (accessed March 28, 2016). 18 Migratory Species Convention, above n 4, Article VII(1) (“The Conference of the Parties shall be the decision- making organ of this Convention.”).

19 CMS-UNEP, Resolution 7.2 – Impact assessment and migratory species (adopted by the Conference of the Parties at its Seventh Meeting in Bonn, September 18-24, 2002), Preamble, http://www.cms.int/sites/default/files/document/RES_7_02_Impact_Assessment_0_0.pdf (accessed March 28, 2016). 20 Id., paras. 1, 2. 21 See paragraph 26 below. 22 CMS-UNEP, Adverse anthropogenic marine/ocean noise impacts on cetaceans and other biota (adopted by the Conference of the Parties at its Ninth Meeting, Rome, December 1-5, 2008), UNEP/CMS/Resolution 9.19 (“Resolution 9.19”), para. 1, http://www.cms.int/sites/default/files/document/Res_9_19_ocean_noise_En.pdf (accessed March 25, 2016). 23 CMS-UNEP, Further steps to abate underwater noise pollution for the protection of cetaceans and other migratory species (adopted by the Conference of the Parties at its Tenth Meeting, Bergen, November 20-25, 2011), UNEP/CMS/Resolution 10.24, para. 4, http://www.cms.int/sites/default/files/document/10_24_underwater_noise_e_0_0.pdf (accessed March 28, 2016). 24 CMS-UNEP, Australia, http://www.cms.int/en/country/australia (accessed March 22, 2016). 25 See generally, Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“EPBC Act”), https://www.legislation.gov.au/Details/C2015C00422; 2014 National Report of Parties on the Implementation of the Convention on the Conservation of Migratory Species of Wild Animals – Australia (May 2014) (“2014 National Report”), UNEP/CMS/COP11/Inf.20.3.AU, pages 6-8 of 81, http://www.cms.int/sites/default/files/document/14- 05-26_Australia_UNEP-CMS-COP11-Inf.20.3.AU_.pdf; Australian Government, Department of the Environment, Migratory species in Australia, http://www.environment.gov.au/biodiversity/migratory-species; Australian Government, Department of the Environment, Listed migratory species, http://www.environment.gov.au/epbc/what-is-protected/migratory-species (all accessed March 23, 2016). 26 EPBC Act, above n 25, ss 20-20B and Chapter 4. 27 See generally, Australian Government, Program Report – Strategic Assessment of the environmental management authorisation process for petroleum and greenhouse gas storage activities administered by the National Offshore Petroleum Safety and Environmental Management Authority under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (“Strategic Assessment”), http://www.environment.gov.au/system/files/pages/06872cd4-b755-4ecf-a4e7-dd16145e1384/files/offshore- program-report.pdf; Australian Government, Department of the Environment, Strategic assessment of the environment management authorisation process for offshore petroleum and greenhouse gas storage activities under the Offshore Petroleum and Greenhouse Gas Storage Act 2006, http://www.environment.gov.au/protection/assessments/strategic/offshore-petroleum-greenhouse-gas; Australian Government, Notification of decision to endorse the program to streamline offshore petroleum and greenhouse gas activity environmental approvals (February 7, 2014), http://www.environment.gov.au/system/files/pages/06872cd4-b755-4ecf-a4e7-dd16145e1384/files/offshore- endorsement-notice.pdf; Australian Government, Department of the Environment, Final approval decision for taking of actions in accordance with an endorsed program under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), http://www.environment.gov.au/system/files/pages/06872cd4-b755-4ecf- a4e7-dd16145e1384/files/offshore-approval-decision-notice.pdf (all accessed March 29, 2016). 28 See generally, Australian Government Guidance – Australian Government agencies’ roles and relevance under the Offshore Petroleum and Greenhouse Gas Storage Act 2006, page 1, http://www.environment.gov.au/system/files/pages/06872cd4-b755-4ecf-a4e7-dd16145e1384/files/offshore- australian-government-guidance-roles-relevance.pdf (accessed March 29, 2016). 29 See generally, Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth), regs. 6- 25A. 30 Id., reg. 13. 31 Id., reg. 13(2) and (3)(e). 32 Id., reg. 13(5).

33 Id., reg. 13(7). 34 Strategic Assessment, above n 27, page 25 (emphasis added). 35 Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth), reg. 10A(b)-(d). See also reg. 10. 36 Strategic Assessment, above n 27, page 35. 37 Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth), reg 11(3). 38 Id., reg 11(4)(a)(ii), (iv) and (v). 39 See generally, BP, Environment Plan Summary, above n 2, page 1. 40 BP Developments Australia Pty Ltd, Referral of proposed action – Great Australian Bight Exploration Drilling Program (May 13, 2013) (EPBC 2013/6863) (“BP Drilling EPBC Act Referral”), pages 23-27, http://epbcnotices.environment.gov.au/_entity/annotation/22acd4fa-9b68-e511-b93f-005056ba00a7/a71d58ad- 4cba-48b6-8dab-f3091fc31cd5?t=1458942909486 (accessed March 29, 2016). 41 See paragraph 17 above. 42 BP, Environment Plan Summary, above n 2, page 2. 43 National Offshore Petroleum Safety and Environmental Management Authority (“NOPSEMA”), Great Australian Bight Exploration Drilling Program, http://www.nopsema.gov.au/environmental-management/ep-submissions- and-summaries/search/details/340 (accessed March 29, 2016). 44 See generally, BP, Environment Plan Summary, above n 2. 45 NOPSEMA, Great Australian Bight Exploration Drilling Program, above n 43; Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth), reg. 10(1)(b), (2) and (3). 46 BP Great Australian Bight Exploration Drilling Program, Environment plan update (March 15, 2016), http://www.bpgabproject.com.au/go/doc/5771/2769210/ (accessed March 29, 2016). 47 See generally, BP, Environment Plan Summary, above n 2, pages 31-34; BP Developments Australia Pty Ltd, BP Drilling EPBC Act Referral, above n 40, pages 15-27; CMS-UNEP, Species, http://www.cms.int/en/species (accessed March 25, 2016). 48 Migratory Species Convention, above n 4, Articles III(5) and I(1)(i); Agreement on the Conservation of Albatrosses and Petrels, above n 17, Articles III(2) and I(2)(q). 49 16 U.S.C. § 1531 – § 1544. 50 16 U.S.C. § 1538. 51 50. C.F.R. § 17.3. 52 BP, Environment Plan Summary, above n 2, pages 5, 54-65. 53 CMS-UNEP, Follow-up of CMS Resolution 9.19 on adverse anthropogenic marine/ocean noise impacts on cetaceans and other biota (16th Meeting of the CMS Scientific Council, Bonn, Germany, June 28-30, 2010), UNEP/CMS/ScC16/Doc.12, para. 2, http://www.cms.int/sites/default/files/document/ScC16_Doc_12_Followup_Res_9_19_Ocean_Noise_Impacts_E_ 0.pdf (accessed March 25, 2016). See also CMS-UNEP, Resolution 9.19, above n 22, Preamble (“Recognising that anthropogenic ocean noise, depending on source and intensity, is a form of pollution, comprised of energy, that may degrade habitat and have adverse effects on marine life ranging from disturbance of communication or group cohesion to injury and mortality; … Noting that … military sonar, seismic exploration, and other noise sources such as shipping pose a significant and increasing threat to cetaceans, both acute and chronic….”). 54 See, for example, Australian Government, Department of the Environment, EPBC Act Policy Statement 2.1 – Interaction between offshore seismic exploration and whales (September 2008), page 2 (“The effects of human made sound in the marine environment is a concern for marine life, particularly whales and dolphins that may be sensitive to certain sound levels, potentially resulting in physical and/or behavioural impacts.”), http://www.environment.gov.au/system/files/resources/8d928995-0694-414e-a082-0ea1fff62fc8/files/seismic- whales.pdf (accessed March 25, 2016). 55 See, for example, National Parks & Conservation Association v. Babbitt, 241 F.3d 722 (9th Cir. 2001); Center for Biological Diversity v. National Science Foundation (N.D. Cal. Oct. 30, 2002). 56 BP Developments Australia Pty Ltd, BP Drilling EPBC Act Referral, above n 40, page 20.

57 See, for example, Robert A. Roconi et al, “Bird interactions with offshore oil and gas platforms: review of impacts and monitoring techniques,” Journal of Environmental Management 147 (2015) 34-35; Joanne I. Ellis et al, “Mortality of migratory birds from marine commercial fisheries and offshore oil and gas production in Canada,” Avian Conservation and Ecology 8(2): 4, http://www.ace-eco.org/vol8/iss2/art4/ (accessed March 25, 2016). 58 BP, Environment Plan Summary, above n 2, page 61. Notably, the US Environmental Protection Agency (“US EPA”) has recently proposed new rules to strengthen the requirements for use of oil dispersants. See generally, US EPA, Revisions to the National Oil and Hazardous Substances Pollution Contingency Plan; Subpart J product schedule listing requirements, https://www.epa.gov/emergency-response/revisions-national-oil-and-hazardous- substances-pollution-contingency-plan; US EPA, Proposed amendments to Subpart J of the National Contingency Plan – Frequent questions, https://www.epa.gov/sites/production/files/2015- 01/documents/subpart_j_nprm_frequent_questions_01-13-15.pdf (both accessed March 25, 2016). 59 BP, Environment Plan Summary, above n 2, pages 7-16, 59-69. 60 National Wildlife Federation, How does the BP oil spill impact wildlife and habitat? http://www.nwf.org/What- We-Do/Protect-Habitat/Gulf-Restoration/Oil-Spill/Effects-on-Wildlife.aspx; The New York Times, The oil spill’s effects on wildlife (August 17, 2010), http://www.nytimes.com/interactive/2010/04/28/us/20100428-spill- map.html?_r=0; National Oceanic and Atmospheric Administration, How oil harms animals and plants in marine environments, http://response.restoration.noaa.gov/oil-and-chemical-spills/oil-spills/how-oil-harms-animals-and- plants-marine-environments.html (all accessed March 29, 2016). 61 Id. 62 Sue E. Moore et al, “Potential impact of offshore human activities on gray whales,” Journal of Cetacean Research Management 4(1):19-25 (2002), http://www.afsc.noaa.gov/nmml/PDF/humanimpact.PDF; Abednego Aryee, “Risks of offshore oil drilling: causes and consequences of British Petroleum oil rig explosion,” Aquatic Science and Technology 1(1) (2013), 101-118 at 111, http://macrothink.org/journal/index.php/ast/article/viewFile/2843/2905 (both accessed March 25, 2016). 63 CMS-UNEP, Resolution 7.3 – Oil Pollution and Migratory Species (adopted by the Conference of the Parties at its Seventh Meeting in Bonn, September 18-24, 2002), Preamble, http://www.cms.int/sites/default/files/document/RES_7_03_Oil_Pollution_0_0.pdf (accessed March 25, 2016). 64 BP, Environment Plan Summary, above n 2, pages 7-11, 57-60. 65 National Wildlife Federation, How does the BP oil spill impact wildlife and habitat? above n 60; The New York Times, The oil spill’s effects on wildlife, above n 60; Craig Welch, National Geographic, Is Gulf oil spill’s damage over or still unfolding? (April 14, 2015), http://news.nationalgeographic.com/2015/04/150414-deepwater-oil-spill-birds- gulf-macondo-louisiana/; Christine Dell-Amore, National Geographic, Gulf oil spill “not over”: dolphins, turtles dying in record numbers (April 9, 2014), http://news.nationalgeographic.com/news/2014/04/140408-gulf-oil-spill- animals-anniversary-science-deepwater-horizon-science/ (both accessed March 25, 2016). 66 See paragraph 17 above. 67 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (June 25, 1998) (also known as the Aarhus Convention), Preamble, http://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf (accessed March 29, 2016). 68 US EPA, Public participation guide: introduction to public participation, https://www.epa.gov/international- cooperation/public-participation-guide-introduction-public-participation (accessed March 29, 2016). 69 Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth), reg. 13(5). 70 Strategic Assessment, above n 27, page 35. 71 Id., page 25. 72 NOPSEMA, Great Australian Bight Exploration Drilling Program, above n 43; Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth), reg. 10(1)(b), (2) and (3). 73 BP, Environment Plan Summary, above n 2, pages 31-34 (citations omitted); see also page 24 for the definition of “AMBA.” 74 Id., pages 54-65. 75 See paragraph 34 above. 76 BP, Environment Plan Summary, above n 2, pages 54-65.

77 Id., pages 6, 54; BP Great Australian Bight Exploration Project, Environment Plan – FAQs and information, http://www.bpgabproject.com.au/go/doc/5771/2501218/ (accessed March 29, 2016). 78 Id. 79 BP, Environment Plan Summary, above n 2, page 30. 80 Id. 81 See generally, Dr Tina Hunter, Centre for International Minerals and Energy Law, University of Queensland, BP Exploration Drilling Program Great Australian Bight – Submission to the Department of Sustainability, Environment, Water, Population and Communities (SEWPaC) regarding referral under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (undated), pages 3-10, http://www.law.uq.edu.au/documents/cimel/BP- EPCA-Referral-Submission-CIMEL.pdf (accessed March 25, 2016). 82 BP, Environment Plan Summary, above n 2, page 3. 83 Id., pages 54-65. 84 See generally, BP, Environment Plan Summary, above n 2, pages 31-34; BP Developments Australia Pty Ltd, BP Drilling EPBC Act Referral, above n 40, pages 15-16, 23-24; CMS-UNEP, Species, above n 47. See also BP Exploration (Alpha) Limited, Referral of proposed action – Ceduna 3D Marine Seismic Survey, Great Australian Bight (May 2011) (EPBC 2011/5969), pages 9-22, http://epbcnotices.environment.gov.au/_entity/annotation/6cf7ea10- 8b69-e511-b93f-005056ba00a7/a71d58ad-4cba-48b6-8dab-f3091fc31cd5?t=1459365024205 (accessed March 29, 2016). 85 See generally, paragraphs 10-13 above.