The High Court in London has handed down a judgment dismissing Greenpeace and Uplift’s judicial review challenge against the North Sea Transition Authority’s (the “ NSTA ”) 33rd Offshore Oil and Gas Licensing Round (the “ Licensing Round ”).
Background
Following the NSTA’s launch of the Licensing Round in October 2022, it was reported that several climate campaign groups had each written to the Business Secretary, Grant Shapps, contesting that the Licensing Round was unlawful, and were calling for the decision (taken by his predecessor Jacob Rees-Mogg) to be reversed.
Following this, Greenpeace and Uplift (the “ Claimants ”) raised separate legal challenges and filed an application at the High Court for judicial review against the decision.
On 25 April 2023, Mr Justice Waksman granted the Claimants permission to apply for judicial review based on certain specific grounds, with both claims being heard together so as to avoid repetition.
Our previous Law-Now detailing the initial permission stage can be found here.
The main issues raised were that the Government:
- failed to take into account the environmental effects of consuming the oil and gas to be extracted in the Licensing Round, and wrongly failed to take into account the advice of the Climate Change Committee; and
- failed to provide any explanation as to why the Licensing Round was considered to meet the climate compatibility checkpoint.
The decision to adopt the climate compatibility checkpoint was also challenged on the basis that it wrongly excluded two tests which it was claimed required to be included: (i) a requirement to consider downstream emissions; and (ii) consideration of the “global production gap”.
High Court Decision
The substantive hearing took place before Mr Justice Holgate on 25 and 26 July 2023. The decision was handed down on 19 October 2023. The challenge was unsuccessful on all aspects.
In particular, the court held that:
- The Secretary of State’s reasoning in its Offshore Energy Plan (the “ Plan ”) and Strategic Environmental Assessment to not assess end use greenhouse gas emissions from other oil and gas licensing rounds was not irrational or in breach of the Environmental Assessment of Plans and Programmes Regulations 2004 (the “ 2004 Regulations ”).
- The court considered that the Plan sets a framework for licensing oil and gas exploration and production in its specified geographical location. It does not set a framework for decisions on development consents for downstream development or for the use of petroleum products in vehicles, for example. Therefore, the determination that end use greenhouse gas emissions are not “ likely significant effects ” of the Plan is adequate and that reasoning cannot be deemed to be irrational.
- The Secretary of State did comply with the obligation under the 2004 Regulations to assess the likely significant effects on the environment of reasonable alternatives and compare them with the Plan.
- The court considered that several of the assumptions that the Secretary of State had made (which were challenged by the Claimants) were entitled to be made as a matter of his judgement. The court found that the Secretary of State was not irrational in his assessment.
- As to the challenge on the climate compatibility checkpoint, this is a non-statutory agreement, which is non-binding. The court was not persuaded from the Claimants’ arguments that the Secretary of State was under an obligation to provide reasons on the application of the climate compatibility checkpoint. Furthermore, the court considered that the Secretary of State had provided adequate reasoning for the exclusion of the tests (referred to above) and that reasoning could not be viewed as unlawful or irrational.
As a result of failing on these issues, the other issues that had been raised also fell away.
Greenpeace has indicated that it will appeal the decision.
Comment
This case follows a number of high-profile judicial review challenges in recent years brought by groups campaigning against the continued production and use of fossil fuels. By and large, these challenges have been unsuccessful.
As mentioned in our previous article, the Supreme Court decision in Finch is still pending, and this will be important in determining the extent to which it is necessary to assess the impact of “Scope 3” greenhouse gas emissions in an environmental impact assessment.
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