Introduction

In the landmark case Greenpeace Ltd v. Secretary of State for Business Energy and Industrial Strategy ([2020] ScotCS CSOH_88), the Scottish Court of Session addressed Greenpeace's petition challenging the legality of consents granted for the development of the Vorlich field by BP Exploration Operating Company Limited. This case pivots on the adequacy of the Offshore Petroleum Production and Pipelines (Assessment of Environmental Effects) Regulations 1999 in transposing the Environmental Impact Assessment (EIA) Directive and the procedural integrity of the consent-granting process involving the Secretary of State and the Oil and Gas Authority (OGA).

Summary of the Judgment

Greenpeace sought judicial review under Section 27A of the Court of Session Act 1988, aiming to declare that the 1999 Regulations failed to fully transpose the EIA Directive and to quash the consents granted for the Vorlich field development. The Court, presided over by Lord Boyd of Duncansby, ultimately refused permission for Greenpeace to proceed with the petition. The refusal was grounded in procedural competencies and the existing consent mechanisms, which the court found sufficient for addressing the environmental concerns raised.

Analysis

Precedents Cited

The Judgment references prior judicial foundations regarding environmental assessments and consent processes. Notably, it underscores the direct effect of EU directives in national law when transposition is inadequate, aligning with principles established in cases like Francovich and Factortame. Additionally, the court considered the obligations under Article 9 of the Aarhus Convention, reinforcing the necessity for access to justice in environmental matters.

Legal Reasoning

Lord Boyd commenced his reasoning by addressing the procedural pathways available for challenging consents. He emphasized that Regulation 16 of the 1999 Regulations provides a mechanism to quash consents based on failures in compliance, particularly concerning environmental statements. The court analyzed whether the petitioner's reliance on the EIA Directive could override the national regulations, concluding that the Directive's direct effect allows its principles to be applied where national law falls short. Moreover, the court examined the scope of Regulation 16, determining that it encompasses both the OGA's consent and the Secretary of State's agreement. This interpretation nullified the respondents' contention that environmental considerations, managed by the Secretary of State, were outside the purview of Regulation 16. Consequently, the court found that the petitioner had avenues to address environmental issues within the existing regulatory framework, rendering the petition an inappropriate invocation of the court's supervisory jurisdiction.

Impact

The refusal to grant permission for the judicial review solidifies the procedural pathways outlined in the 1999 Regulations for contesting environmental consents. It underscores the necessity for petitioners to utilize specific regulatory mechanisms, such as Regulation 16, before seeking broader judicial intervention. Additionally, the acknowledgment of the Secretary of State's acceptance of the Regulations' shortcomings paves the way for legislative and regulatory reforms to address compliance with the EIA Directive.

Complex Concepts Simplified

Conclusion

The Judgment in Greenpeace Ltd v. Secretary of State highlights the complexities of environmental law enforcement within the framework of national regulations and EU directives. By refusing permission for a broader judicial review, the Scottish Court of Session reinforced the importance of utilizing designated regulatory mechanisms for contesting environmental consents. This decision not only reinforces procedural adherence but also signals impending regulatory reforms to better align national law with overarching environmental directives. Stakeholders in environmental governance and corporate compliance must heed the delineated pathways for legal challenges to ensure robust and lawful environmental oversight.