The Outer House of the Court of Session has taken a notable decision on both the consent for the Rosebank oil and gas field and the consent for the Jackdaw gas field.

This follows the Supreme Court’s landmark Finch decision on downstream emissions to be considered in Environmental Impact Assessments (“EIA”). Our previous blog 'How wider climate risk considerations may impact applications for future developments' discusses Finch in further detail.

Background

The Rosebank oil and gas field was approved by the Secretary of State and Oil and Gas Authority (“OGA”) (now known as the North Sea Transition Authority (“NSTA”)) in June/September 2023 and is situated west of Shetland. The Jackdaw gas field is situated east of Aberdeen and was approved by the Secretary of State and OGA in May/June 2022. When both fields were approved, the EIAs submitted as part of the application process did not take into account the effect on climate of the downstream emissions caused by the combustion of the oil and gas to be produced.

Three court challenges (Greenpeace Jackdaw, Greenpeace Rosebank and Uplift Rosebank) were brought against the decisions at both fields. In each court challenge, all parties were agreed that the decisions were unlawful as the EIA on which they were based did not assess the effects of downstream emissions. The Court was asked by the parties to decide whether:

      i.        The decisions should be revoked and new decisions required to be made taking into account downstream emissions; or

     ii.        Allow the decisions to stand, and the projects proceed despite the decisions being unlawful.

Decision

Lord Ericht revoked the decisions and has required the decisions to be made again on a proper and lawful basis taking into account downstream emissions. It is worth noting that the revocations were suspended until new decisions are made by the NSTA for both projects.

Lord Ericht in his decision remarked that a strong factor in favour of reduction was the public interest in the rule of law and in authorities acting lawfully. The decision did acknowledge the practical implications of revoking the decision or allowing the decision to stand but noted that not considering additional downstream emissions is a material error that may have led to a different decision. Lord Ericht quoted Lord Leggatt in Finch noting that in any event there is a public interest to ensure that a project which is likely to have significant adverse effects on the environment is authorised with full knowledge of these consequences.  

The decision acknowledged private interests were engaged in two matters:

      i.        developers have an interest on the court’s determination on their business, members of the public have an interest in the court’s determination on their lives; and

     ii.        individual members of the public have an interest in being able to contribute to the decision by expressing concerns which the decision maker can take into account.

The Court found the private interests of members of the public weigh strongly in favour of the decisions being revoked and remade on a lawful basis. The basis for this being that the effect of downstream emissions on climate change would be taken into account, and members of the public and the petitioners would be able to express their views on that in the consultation stage of the decision-making process.

The Court confirmed the law as stated by the Supreme Court in Finch also applies to decisions which were dated prior to the Finch judgment.

Implications of the ruling

The Court’s decision on the revocations will not take effect until the NSTA makes a new decision for both projects. From now until the new NSTA decision is issued, preparatory engineering and construction works can proceed, but no oil or gas may be extracted from the relevant fields.

The effect of the Court’s determination has been delayed until a new decision is made to avoid dubiety on the legality of the works undertaken to date owing to OPRED (part of the Offshore Major Accident Regulator) not currently assessing environmental statements affected by Finch until new EIA guidance is prepared. A consultation on this guidance closed on 8 January with the guidance expected to be published in Spring 2025.

It is worth noting that this is a decision of the Outer House of the Court of Session may be appealed to the Inner House and further to the Supreme Court.

Get expert advice

If you have any queries on how this decision or EIAs may impact upcoming projects, please contact our planning and environment team who will be able to assist you.

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