Is fossil fuel use a legal or political issue?

Climate change litigation continues to dominate the legal headlines, as increasing numbers of claims seeking to hold governments and companies to account for their climate change commitments are pursued. However, as demonstrated by the recent case of Greenpeace Ltd v The Advocate General, 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 made 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 consent for two new production wells in the Vorlich oil field in the North Sea.

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

Greenpeace originally sought to have the OGA’s decision reviewed in the High Court in London, alleging that, in deciding to approve the granting of consent, the SoS had failed to take into account the effect of the consumption of the oil on the UK’s carbon budget and its contribution to climate change. However, the High Court refused permission for judicial review, so Greenpeace then lodged an appeal against the consent and a parallel petition for judicial review in Scotland. Permission for judicial review was also refused by the Scottish Court of Session, but the appeal proceeded.

The appeal was primarily raised on certain technical grounds that the notice requirements pursuant to the 1999 regulations had not been complied with, such that the public had been deprived of their right to make representations opposing the consent and were consequently prejudiced. But the real heart of Greenpeace’s case was that, when granting consent, the SoS and the OGA had failed to take into account the impact of the consumption of the oil that would be produced from the Vorlich field by end-users.

The Court of Session firmly rejected the appeal on both grounds. It largely accepted the submissions by the SoS and the OGA that the procedural publication formalities of awarding a permit pursuant to the 1999 regulations were ‘substantially met’ and held that Greenpeace’s case was ‘overwhelmingly technical and unconvincing’. Further, it rejected the argument that end-user consumption of oil and gas is a relevant consideration when deciding whether to award a permit for a fossil fuel extraction project.

Read the latest issue of the OGV Energy magazine HERE