Is the use of fossil fuels a legal or political problem? | Characteristic

Climate change litigation continues to dominate the legal headlines, as a growing number of claims seeking to hold governments and corporations to account for their climate change commitments are pursued. However, as the recent case Greenpeace Ltd v the Solicitor General demonstrated, not all courts consider the effects of fossil fuel use to be a legal issue.

In this case, Greenpeace appealed to the Scottish Court of Session against the decision taken by the Secretary of State for Business, Energy and Industrial Strategy (the SoS) and the Oil and Gas Authority (OGA) to grant BP Exploration Operating Company Ltd and Ithaca Energy (UK) Ltd gives its consent for two new production wells in the Vorlich oil field in the North Sea.

The OGA had given its consent under section 3(1) of the Petroleum Act 1998, following a decision by the SoS that consent could be given under section 5( A1) of the Offshore Petroleum Production and Pipelines (Environmental Effects Assessment) Regulations 1999 (the 1999 Regulations).

Greenpeace initially sought to have the OGA’s decision reviewed in the High Court in London, alleging that in deciding to approve the grant of consent, the SoS failed to consider the effect of consumption of oil on the UK’s carbon budget and its contribution to climate change. However, the High Court refused leave for judicial review, so Greenpeace then filed an appeal against consent and a parallel application for judicial review in Scotland. Leave for judicial review was also refused by the Scottish Court of Session, but the appeal was continued.

The appeal was primarily raised on certain technical grounds that the notification requirements under the 1999 Regulations had not been complied with such that the public had been deprived of their right to make representations against consent and had therefore suffered damage. But the real heart of Greenpeace’s case was that when granting consent, the SoS and OGA failed to consider the impact of the consumption of the oil that would be produced from the Vorlich field by end users.

The Court of Session firmly dismissed the appeal on both grounds. He broadly accepted the arguments of the SoS and the OGA that the procedural formalities of publishing a permit award under the 1999 regulations were “substantially complied with” and found the Greenpeace case to be “extremely technical. and unconvincing. Further, he rejected the argument that end-user oil and gas consumption is a relevant factor when deciding whether to grant a permit for a fuel extraction project. fossils.

Gwen Wakwitz

Leaving no room for ambiguity, the court relied on the reasoning of Holgate J in R (Finch) v Surrey County Council, in which the court held that the legal test of a direct or indirect environmental effect must be physically linked to the site where the project is being developed (and where the relevant planning permission is sought). As a result, the “unavoidable consequences” that occurred after the point of raw material extraction were not close enough to the project to be considered in the environmental assessment.

On this basis, the court found that the SoS and OGA were only required to consider the environmental effects of drilling the wells, extracting oil and gas, and depositing and mining them. an exploration platform or an on-site platform, and that the relevant considerations which had to be taken into account when preparing an environmental assessment are those set out in Regulation 3A of the 1999 Regulations. court also noted that, even applying the broadest interpretation of this regulation, its express wording could not be ignored, and it does not refer to the consumption of hydrocarbons produced by the project.

Notably, the court relied on R (Finch) to support its view that the transition to a low-carbon society under the Climate Change Act 2008 remained within the purview of the UK government. He also agreed with the SoS’s argument that environmental assessments taking into account the effects – whether local or global – of end-consumer fossil fuel use “would not be feasible” and noted that This is ultimately a political rather than a legal decision. , publish.

Mark Clarke is Partner and Gwen Wackwitz Partner at White & Case

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