Petitions by Greenpeace LTD & Uplift for Judicial Review (Court of Session)

Factual and Procedural Background

These three judicial review petitions challenge the lawfulness of consents granted under the Offshore Oil and Gas Exploration, Production, Unloading and Storage (Environmental Impact Assessment) Regulations 2020 ("the 2020 Regulations") for two offshore projects: the Jackdaw Field and the Rosebank Field. The petitioners, two non-governmental organizations and one other petitioner, seek review of decisions by the Secretary of State for Business Energy and Industrial Strategy and the Oil and Gas Authority (OGA, also known as the North Sea Transition Authority) to grant consent to developers Company A (part of a larger group) for the Jackdaw project and Company B (with a partner company) for the Rosebank project.

Both projects involve significant offshore oil and gas developments with substantial investment and ongoing works. The Jackdaw project involves drilling wells, subsea pipelines, and platform construction, with production expected to start in 2026 and continue for approximately eight years. The Rosebank project includes a Floating Production, Storage and Offloading vessel and subsea infrastructure, with production expected to start in 2026-2027 and continue for about 25 years. Both projects are significant contributors to UK oil and gas production.

The petitioners challenge the decisions on the basis that the Environmental Impact Assessments (EIAs) did not lawfully consider downstream emissions (Scope 3 emissions), i.e., the climate impact of burning the produced oil and gas. The petitions were initially stayed pending the Supreme Court's decision in a related case clarifying the legal requirements for including downstream emissions in EIAs. Following the Supreme Court judgment, the petitions proceeded to substantive hearing.

Legal Issues Presented

1. Whether the decisions by the Secretary of State and the Oil and Gas Authority to grant consent for the Jackdaw and Rosebank projects were lawful given the failure to assess downstream emissions in the Environmental Impact Assessments.
2. What remedy should be granted for the unlawful decisions: whether to reduce (quash) the consents and require re-consideration on a lawful basis or to grant declarator allowing the decisions to stand despite unlawfulness.
3. Whether the Secretary of State and OGA were obliged to take the Scottish National Marine Plan into consideration in the Rosebank project decisions.
4. Whether the OGA was under a duty to provide reasons for its consent decisions.
5. Whether the Secretary of State has the power to reconsider the consent decisions while the original decisions remain in force due to suspension of reduction.

Arguments of the Parties

Petitioners' Arguments

• The failure to assess downstream emissions renders the decisions unlawful and the normal remedy is reduction (quashing) and re-making the decisions lawfully.
• Reduction is necessary to ensure compliance with domestic and international climate obligations and public participation rights.
• Arguments about net zero developments or substitution of oil and gas are irrelevant to the legal requirement to assess downstream emissions.
• The principle of finality does not outweigh the need to correct unlawful decisions.
• The developers proceeded at their own commercial risk knowing the Supreme Court decision was pending.

Uplift's Arguments

• Reduction is discretionary but generally the appropriate remedy for unlawful decisions.
• The public was deprived of full participation regarding downstream emissions.
• Little prejudice has been suffered by interested parties as petitions were raised promptly and developments proceeded at risk.
• Arguments about economic benefits are irrelevant to the court's role.
• Reduction does not invalidate all prior acts done in reliance on the consents.
• Opposes any suspension of reduction that would allow continued extraction prior to lawful reconsideration.

Advocate General's Arguments

• Accepts the decisions were unlawful on the downstream emissions ground.
• Invites the court to avoid remedies that would halt work in a manner risking site safety or environmental harm.
• Notes that unlawful decisions remain effective until the court orders otherwise and the court has discretion over remedies.
• Doubts the Secretary of State's power to reconsider while original decision remains in force.

OGA's Arguments

• Accepts unlawfulness on the downstream emissions ground.
• Leaves the remedy as a discretionary matter for the court and makes no submissions on it.

Company A's (Shell) Arguments

• Opposes reduction or seeks suspension of reduction to allow decisions to be remade or to allow safe suspension and removal of equipment.
• Emphasizes the public interest in certainty for business activities.
• Argues it was reasonable to rely on government advice and policy prevailing at the time, including emails stating downstream emissions were not to be considered.
• Points to substantial investment and operational progress made under apparently valid consents.
• Reduction risks significant operational, safety, financial challenges and public costs due to decommissioning.

Company B's (Equinor) Arguments

• Primary position is refusal of reduction and instead granting a declarator that the Environmental Statement was incomplete.
• Reduction would be inequitable given the advanced stage of the project and prejudice to public interests.
• Argues the law was uncertain at the time and that the failure to include downstream emissions was not their fault but a regulatory failure.
• Highlights substantial expenditure and contractual commitments made in reliance on the consents.
• Seeks suspension of any reduction effect to allow reconsideration without halting the project.
• Raises concerns about economic consequences including energy security, tax revenue, jobs, and inward investment.

Partner Company (Ithaca) Arguments

• Supports refusal of reduction and considers a declarator sufficient.
• Notes that the law at the time was as per the earlier Inner House decision, which did not require downstream emissions to be considered.
• Points to obligations under licensing and the need to proceed with development to avoid breach.
• Highlights significant investment and potential adverse consequences of delay.
• Supports suspension of reduction effect to allow reconsideration.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Finch) v Surrey County Council [2024] PTSR 988	Requirement to assess downstream (Scope 3) emissions in Environmental Impact Assessments under the EIA Directive and UK Regulations.	Binding Supreme Court authority establishing that failure to assess downstream emissions renders decisions unlawful under the 2020 Regulations.
Greenpeace v Advocate General for Scotland [2021] IHCS	Interpretation of the 1999 Regulations and scope of environmental assessments regarding downstream emissions.	Earlier Inner House decision held downstream emissions not relevant; superseded by Finch as to law.
R (Corus UK Limited) v Newport City Council [2010] EWCA Civ 1626	Judicial review remedies and the normalcy of quashing unlawful decisions.	Supported petitioners' argument that reduction is the normal remedy for unlawful administrative decisions.
Walton v Scottish Ministers [2013] SC (UKSC) 67	Discretion in judicial review remedies balancing public and private interests.	Applied to consider prejudice to public and private interests in deciding whether to grant reduction or refuse on equitable grounds.
Boddington v British Transport Police [1999] 2 AC 143	Effect of quashing orders on acts done in reliance on decisions.	Referenced to support that reduction does not necessarily invalidate all prior actions done under the consent.
R (Rockware Glass) v Chester CC [2006] EWCA Civ 992	Suspension of quashing orders to allow reconsideration without immediate disruption.	Used as precedent to justify suspension of reduction to allow projects to continue preparatory works pending lawful reconsideration.
R (CPRE Kent) v Dover DC [2018] 1 WLR 108	Limits on duty to give reasons in administrative decisions.	Supported finding that OGA was not under a duty to give reasons for its consent decisions.
Grahame v Magistrates of Kirkcaldy [1882] 9 R (HL) 91	Equitable discretion to withhold remedies in exceptional cases.	Referenced regarding the court's discretion to refuse reduction on equitable grounds, but noting such refusal is rare and requires cogent reasons.
EBA v Advocate General for Scotland [2007] SC (HL) 1	Judicial review in Scotland and the exercise of discretion regarding remedies.	Clarified that the court must entertain competent applications but may refuse remedies on equitable grounds.

Court's Reasoning and Analysis

The court began by affirming the binding authority of the Supreme Court decision in Finch, which established that downstream emissions must be assessed in Environmental Impact Assessments under the 2020 Regulations. The consents for the Jackdaw and Rosebank projects were therefore unlawful as they failed to include such assessments.

The court considered the appropriate remedy for this unlawfulness. The normal remedy in judicial review for unlawful decisions is reduction (quashing) to allow decisions to be remade lawfully. The court noted that the unlawfulness here was material, as including downstream emissions could alter the outcome of the consent decisions.

The court weighed the public interest in the rule of law and lawful decision-making against the private interests of the developers and the potential disruption and costs of reduction. It acknowledged the significant investments and progress made by the developers and the potential economic and employment impacts of delay or cancellation.

However, the court found that the public interest in lawful administration and the private interests of the public in climate protection and participation outweighed the developers' interests. The developers proceeded with the projects at their own commercial risk knowing the law was uncertain and judicial review was underway.

The court rejected arguments that reliance on government advice or contractual obligations justified refusal of reduction. It also found that the OGA was not required to consider the Scottish National Marine Plan, and that the OGA had no common law duty to give reasons for its consent decisions.

Recognizing the complexity and timing of the projects, the court exercised its equitable discretion to suspend the effect of the reduction orders. This suspension allows the Secretary of State and the OGA to reconsider their decisions lawfully and for the developers to continue preparatory works or make the sites safe. However, the court imposed a condition that no oil or gas extraction may occur until lawful consent is granted on reconsideration, preserving the core purpose of the environmental assessment regime.

The court also addressed concerns about the Secretary of State's power to reconsider while the original decision remains in force, concluding that the court's equitable powers under judicial review and the 2020 Regulations provide the necessary authority.

The court further clarified that the reduction orders will have prospective effect from the end of the suspension period, ensuring that works done prior to reduction remain lawful.

Holding and Implications

The court's final decision is to REDUCE (quash) the decisions of the Secretary of State and the Oil and Gas Authority to grant consent for the Jackdaw and Rosebank projects due to the failure to lawfully assess downstream emissions.

This reduction is subject to suspension until the OGA makes new decisions on the consents in accordance with the law, including proper assessment of downstream emissions. During the suspension period, the Secretary of State and OGA retain the power to reconsider and grant or refuse consent, and preparatory works may continue or be safely suspended. However, no extraction of oil or gas is permitted until lawful consent is granted on reconsideration.

The direct effect of this decision is to require the consents to be reconsidered lawfully, ensuring compliance with environmental law and public participation rights. No new precedent beyond the application of the Finch decision is established. The ruling balances the rule of law and environmental protection against economic and practical considerations, emphasizing that unlawful decisions cannot stand uncorrected even where significant investments have been made.