Procedural Compliance Satisfied: Scottish Court Upholds EIA Consent for Vorlich Oil Field Exploitation Despite Greenpeace Appeal

Introduction

In the landmark case of Greenpeace Ltd v Advocate General and BP Exploration Operating Company Ltd ([2021] ScotCS CSIH_53), the Scottish Court of Session addressed significant procedural and substantive issues surrounding environmental impact assessments (EIA) for offshore petroleum projects. Greenpeace Limited, renowned for its environmental activism, appealed against the decisions permitting BP Exploration Operating Company Limited (BP) and Ithaca Energy (UK) Limited to exploit the Vorlich oil field in the North Sea. The key issues revolved around compliance with the Offshore Petroleum Production and Pipelines (Assessment of Environmental Effects) Regulations 1999, the scope of EIA concerning greenhouse gas emissions, and procedural fairness in public consultation processes.

Summary of the Judgment

The Scottish Court of Session, presided over by Lord President Lord Menzies, Lord Pentland, and delivered by Lord Carloway, dismissed Greenpeace's appeal. The court held that BP and Ithaca had sufficiently complied with the procedural requirements set forth in the 1999 Regulations, which transposed the EU Directive 2011/92/EU into UK law. Although Greenpeace raised concerns regarding arithmetical errors in BP's environmental statement and the relevance of downstream greenhouse gas emissions from oil consumption, the court found these issues either immaterial or already addressed in prior judicial review proceedings. Consequently, the consent granted for the exploitation of the Vorlich oil field remained upheld.

Analysis

Precedents Cited

The judgment extensively references several key precedents that shape environmental law and procedural fairness in the UK:

R (Friends of the Earth) v Heathrow Airport [2021] PTSR 190: Established that climate change considerations are relevant in EIA processes.
Kendall v Rochford District Council [2015] Env LR 21: Clarified the requirements for public notice in environmental applications.
Walton v Scottish Ministers 2013 SC (UKSC) 67: Addressed the criteria for being considered an "aggrieved person" in environmental appeals.
R (Finch) v Surrey County Council [2021] PTSR 1160: Determined the scope of environmental effects attributable to a development project.
R v Rochdale Metropolitan Borough Council Ex p Milne (No 1) [2000] Env LR 1: Discussed the significance of procedural compliance in EIAs.

These cases collectively informed the court's interpretation of procedural compliance, the scope of EIAs, and the standing of environmental organizations in challenging governmental consents.

Legal Reasoning

The court's legal reasoning centered on two main pillars: procedural compliance with the 1999 Regulations and the substantive scope of the EIA concerning greenhouse gas emissions.

Procedural Compliance:
- **Publicity Requirements:** The court examined whether BP sufficiently published notices as mandated by regulations 9 and 9(2A). Despite an initial technical error in publishing an incomplete template on BP's website, the court found that sufficient information was available through press releases and specified web addresses, thereby constituting substantial compliance.
- **Opportunity for Public Participation:** Greenpeace failed to demonstrate that the procedural shortcomings denied them a genuine opportunity to participate. The court emphasized that Greenpeace had existing avenues for making representations, which were not appropriately utilized.
Scope of EIA:
- **Direct vs. Indirect Effects:** Greenpeace's argument that downstream greenhouse gas emissions from oil consumption should be considered was dismissed. The court held that EIAs are constrained to assessing the direct and indirect environmental effects of the project itself, not the ultimate use of the extracted resources.
- **Arithmetical Errors:** The minor clerical inaccuracies in BP's environmental statement concerning greenhouse gas emissions were deemed immaterial, as they did not affect the overall assessment of environmental significance.

Furthermore, the court underscored the autonomy of the Secretary of State in balancing economic and environmental considerations within the framework of national and international climate policies, such as the UK's Climate Change Act 2008 and the Paris Agreement.

Impact

The judgment has significant implications for the implementation of EIAs and the procedural rights of environmental advocacy groups:

Procedural Robustness: Affirmation that minor procedural lapses do not necessarily invalidate EIAs, provided there is substantial compliance and no demonstrable prejudice to aggrieved parties.
Scope of EIA Assessments: Reinforcement of the limited scope of EIAs in assessing environmental impacts directly and indirectly associated with the project, excluding downstream effects such as end-user consumption.
Standing of Environmental NGOs: Clarification that organizations like Greenpeace must actively engage in procedural opportunities to challenge developments; mere dissatisfaction with environmental outcomes does not automatically grant standing.
Regulatory Framework Confidence: The decision bolsters confidence in the existing regulatory framework governing offshore petroleum projects, emphasizing the balance between economic development and environmental safeguards.

Future cases involving similar procedural or substantive challenges will likely reference this judgment to delineate the boundaries of EIA scopes and the extents of allowable procedural deficiencies.

Complex Concepts Simplified

Environmental Impact Assessment (EIA)

An Environmental Impact Assessment is a process used to evaluate the environmental consequences of proposed projects before they are carried out. It ensures that decision-makers consider environmental factors alongside economic and social aspects.

Procedural Compliance

This refers to adhering strictly to the established legal procedures and requirements during the assessment and approval of projects. Non-compliance can lead to legal challenges and potential invalidation of project approvals.

Direct and Indirect Effects

Direct Effects: Immediate consequences of a project, such as emissions from drilling activities.
Indirect Effects: Secondary consequences, which might not be directly caused by the project, such as greenhouse gas emissions resulting from the consumption of the extracted oil.

Res Judicata

A legal principle that prevents parties from re-litigating issues that have already been conclusively settled in previous judicial proceedings.

Regulation 16 Appeal

Under Regulation 16 of the 1999 Regulations, aggrieved persons can appeal court decisions to quash or reduce consents granted for projects, provided procedural or substantive irregularities exist.

Conclusion

The Scottish Court of Session's decision in Greenpeace Ltd v Advocate General and BP Exploration Operating Company Ltd underscores the importance of substantial procedural compliance in environmental regulatory frameworks. While environmental groups play a critical role in advocating for sustainable practices, this judgment delineates the boundaries of their legal standing in challenging project consents. Moreover, it clarifies the scope of EIAs, affirming that assessments focus on the direct and immediate environmental impacts of projects rather than the broader, downstream consequences of resource consumption. As environmental regulations continue to evolve, this case serves as a pivotal reference point for balancing economic development with environmental stewardship within the UK's legal landscape.