Summaries of opinions (judgments) provide a short explanation of judicial decisions in order to assist understanding and may be published in cases where there is wider public interest. They provide the main findings, but do not form part of the reasons for the decision.
The judgment published on the Scottish Courts and Tribunals website is the only authoritative document.
Oct 7, 2021
The appeal was against a decision which permitted exploitation of the Vorlich oil field by BP (as main operator) and Ithaca. The Court of Session heard that it had cost £230M to develop the oil field and calling a halt to ongoing production would cost £5M per month.
The Secretary of State for Business, Energy and Industrial Strategy had decided that consent for the operation should be granted to the companies by the Oil and Gas Authority.
Greenpeace appealed that decision seeking a reduction to the consent and thereby calling a halt to the operation. They argued that the consultation exercise had breached certain regulations. They said that the breaches meant they had not been sufficiently aware of the operation to object to the environmental impact before permission was granted.
They cited regulations relating to projects likely to have a significant environmental impact which set out the steps to be followed in order to enable public participation in the consultation process.
These regulations call for applications, supporting environmental documents, and details on how to make representations to be made available to the public, including interested parties.
The Secretary of State argued that any failures in the application process had been minor with no impact on a final decision, and had not prevented Greenpeace from making timeous representations.
The Court accepted that BP had failed to publish a complete Notice on a website as required under the regulations. However, it ruled that, despite the failure in relation to the Notice, all of the relevant details around the application, the environmental statement, and how to make representation were available in press notices published in the Daily Telegraph and the Press and Journal, via BP’s own website and through media coverage. The regulations stated that publication must be on a public website, but not on a government website.
Greenpeace argued that the Secretary of State’s environmental assessment had only taken into account the effect caused by exploiting the oil field and had not included the impact of the eventual use of the oil and gas by the consumer.
The Secretary said that “direct emissions from the end use of oil and gas in the UK were considered and taken into account in the UK’s Annual Statement of Emissions … Indigenous oil and gas development was an important part of the transition to a low carbon economy. This was all part of the existing framework, which sought to manage the UK’s progressive decarbonisation up to the year 2050. The production of oil from the Vorlich field did not increase the use of oil.”
The Court accepted the Secretary of State’s position. It ruled that the consumption of the end product should not have been considered in the environmental assessment. Delivering the opinion of the Court, the Lord President, Lord Carloway, said: “The clearly expressed wording of the legislation cannot be disregarded. It is the effect of the project, and its operation, that is to be considered and not that of the consumption of any retailed product ultimately emerging as a result of a refinement of the raw material.”
He continued: “Although the appellants’ aspiration is for such extraction to cease, it does not appear to be contended that the UK economy is not still reliant in a number of different ways on the consumption of oil and gas. At present, a shortage of oil and gas supplies is a matter of public concern. The argument is, in any event, an academic one. It is not maintained that the exploitation of the Vorlich field would increase, or even maintain, the current level of consumption. Unless it did so, it is difficult to argue that it would have any material effect on climate change … The Secretary of State’s submission that these are matters for decision at a relatively high level of Government, rather than either by the court or in relation to one oilfield project, is correct. The issue is essentially a political and not a legal one.”
The appeal - which was brought by Greenpeace against the Advocate General representing the Secretary of State & the Oil and Gas Authority, and BP & Ithaca - was refused.
Summaries of opinions provide a short explanation of judicial decisions in order to assist understanding. The full judgment published on the Courts website is the only authoritative document.
7 October 2021