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Climate Change Litigation Continueth – The Scottish Case: Greenpeace v. BEIS and the OGA (and BP too)

Insights / / London

all the perfumes of Arabia will not sweeten this ...

The Scottish Court of Session has declared that dealing with the global environmental impact of the consumption of oil is a political matter for the UK Government, not a legal issue for the UK Courts in considering the validity of approval to drill new oil wells in a single field.

The loch of oil

In March 2018, BP sought consent to drill two new production wells in the Vorlich field. The UK Secretary of State for Business, Energy and Industrial Strategy (‘BEIS’) agreed and consent to drill was given by the Oil & Gas Authority (‘OGA’) in September 2018. Production came on stream at the end of 2019.

Greenpeace then sought to quash the decisions by BEIS and the OGA (and, indirectly, stop oil production at Vorlich), on the basis that there had been failures to comply with the requirements of the consenting process, which had deprived Greenpeace of the opportunity to make representations that climate change and the effect of consumption of the produced oil were relevant considerations.

Technicalities

The relevant part of the consenting process was governed by the then Offshore Petroleum Production and Pipe­lines (Assessment of Environmental Effects) Regulations 1999 (‘Regulations’) which required various notices to be given, how they were to be given and their content.

It was accepted by BEIS that the Regulations had failed to transpose EU Directive (2011/92/EU)[1] in relation to the supply to the public of information about the content of public decisions relating to the assessment of the effects of projects on the environment – resulting in a failure to publish the consent – and in respect of court reviews of consents. Those matters had been dealt with by the issue of replacement regulations and a republishing of the OGA’s consent.

There were errors in the consenting process. A fully completed press notice was not included with BP’s environmental assessment as published on BP’s website and there were arithmetical inaccuracies in the environmental statement. The Court, however, held that there was sufficient publicity of BP’s application, that the defect in relation to the press notice was minimal and that BEIS had adequate material to be satisfied that the requirements of the Regulations had been “substantially met”, as required by the Regulations. Nor did the clear language of the Regulations require BP to publish the application on a government website as Greenpeace contended. The arithmetical errors in BP’s environmental assessment were irrelevant because the evidence, with which the Court agreed, was that the errors did not alter the overall  CO2 figure or the overall assessment.

The real McCoy

Of course, the bones of Greenpeace’s case was that BEIS and the OGA had failed to take into account the effect of consumption of the produced oil.  The Regulations required that BP’s environmental statement“assess … the direct and indirect significant effects of the relevant project on ... climate”.

Importantly, the relevant part of the EU Directive defined a “project” as the execution of construction works or of other installations” and “other interventions … involving the extraction of mineral resources”. As such, the Court held, the effects to be considered by BEIS were limited to those relating to the project only (i.e., the drilling of the wells and the extraction of petroleum products) and did not include the effect of the ultimate use of the refined oil, even though such consumption may have inevitable consequences for the environment.

Greenpeace’s case was also hampered by Greenpeace’s inability to assert that production from the Vorlich field would increase the current level of consumption of oil or have any material effect on climate change.

It’s not guns which kill people …

The Court was critical of Greenpeace’s failure to make their technical points during the consenting process despite ample publicity, remarking that “as a leading environmental watchdog, [Greenpeace] ought to have been well aware of the legal mechanisms available in order to mount a challenge”. That failure would have been fatal to Greenpeace’s challenge even had Greenpeace succeeded on their technical arguments, which the Scottish Court called “overwhelmingly technical and unconvincing”. Even were they not, Greenpeace’s failure to seek interim orders restraining drilling and Greenpeace’s delay in starting proceedings until late 2019 might have prevented a cessation of production.

Ultimately, though, Greenpeace did not succeed due to the language of the Regulations and the scope of the project. It remains to be seen if the Court’s view would be different in relation to the assessment for a new oil refinery (where the use of the product might be more closely linked to the project), but the Scottish Court made it clear that the way in which the UK achieves the 2050 net zero emissions target is the responsibility of the UK Government, as has the English Court (R (Finch) v Surrey County Council [2021] PTSR 1160).

Together with the English Court recently stating that it is not the court’s responsibility to make political, social or economic choices (R (Rights: Community: Action) v Secretary of State for Housing, Communities and Local Government [2021] PTSR 553), this suggests the UK courts consider that the proper forum for dealing with climate change is the UK Parliament and not the Courts, setting them apart from their Dutch counterparts (in Milieudefensie et al. v. Royal Dutch Shell PLC[2]).

Appeal by Greenpeace Ltd against The Advocate General and Another and BP Exploration Operating Company Ltd And Another [2021] ScotCS CSIH 53

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[1] Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment

Ben Moon

Ben Moon Legal Director

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