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Courts proving another tool in the arsenal for climate activists and oil firms

climate courts oil
"It appears increasingly likely that use of the courts will form another part of the strategy of both protesters and companies", writes Neil Smith of Burness Paull.

With COP26 approaching, amid reports that police are preparing for major civic disruption, there are also plans that the Scottish criminal courts may be opened for extra sessions to deal with a potentially high number of arrests during the conference.

At the same time, the civil courts in Scotland are seeing increased activity directly related to the climate change debate.

High up the news agenda in Scotland earlier this month was a legal case brought in the Court of Session by Greenpeace against the UK government. Beyond the headlines, it was not immediately easy to discern what the substance of the case was.

Why is the case in court?

The dispute relates to the Vorlich field, an area believed to have around 30 million recoverable barrels of oil, located in the Central North Sea about 150 miles east of Aberdeen. The Licence to explore the area was granted back in 1981.

BP and its co-venturers discovered the Vorlich field in 2014 and in September 2018, BP received a permit from the UK government to drill/produce the Vorlich field. The field became operational last year.

Greenpeace is seeking to have the permit revoked. Why Greenpeace went to court is relatively easy to answer.

The position widely held by many climate activists in the UK and across the world is that we need to stop extracting hydrocarbons entirely and immediately.

How they were able to bring this challenge is (at least for lawyers), fairly interesting and perhaps points to a new tactic by protest groups.

What is the basis of the legal challenge?

Greenpeace’s case on Vorlich is a statutory appeal under Regulation 16 of the Offshore Petroleum Production and Pipelines (Assessment of Environmental Effects) Regulations 1999. Readers who were already familiar with this legislation and the particular basis of action should be awarded a gold star!

For the rest of us, the regulation allows that anyone ‘aggrieved’ by the grant of consent of a project for reasons relating to the ‘environmental statement’ submitted can apply to court to get the consent quashed.

To succeed, the aggrieved party needs to persuade the court that the consent was granted in contravention of another of the regulations, which requires consideration of environmental statements or that the interests of the aggrieved party have been otherwise substantially prejudiced by a failure to comply with the Regulations.

Greenpeace’s position to the court was that the government had not received all of the relevant information and that an inadequate consultation period for the development had taken place.

There was also a technical failure around the issuing by BP of notices to the general public, which was a factor in the inadequacy of the consultation.

Cumulatively, this meant that Greenpeace were prevented from being actively involved in the formal consultation.

The QC acting for the government acknowledged a technical failing, which amounted to a blank template form being posted online rather than a completed document, but that this did not amount to a material issue.

Further, the challenge was looking to apply an indirect consequence (ultimate emissions from the end product) to a specific project. Based upon the assessment criteria in place at the time that would not be the correct approach. Revocation of the license granted by the government would be entirely disproportionate and not objectively justifiable.

Submissions for the company highlighted that the field is currently active following huge financial investment and, if Greenpeace’s application were to be granted, operations could not continue pending resolution of the consent issue. This could create health and safety issues.

The court’s decision is awaited.

What happens next?

Whatever the outcome, it appears increasingly likely that use of the courts will form another part of the strategy of both protesters and companies as different interests in the climate change debate seek to advance their position or attempt to compel state bodies to act in a particular manner.

It may well be that future UK government policy and assessment criteria change, as has been recently suggested with ‘climate compatibility checks’.

Such a change could leave significant questions on both sides of the debate regarding the status of licenses and projects granted in the past.

This could throw up the tricky issue of potentially contradictory approaches in practice across those different spheres, as private law matters, like existing contracts, could well end up at odds with public law changes to address climate change.

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