Ongoing challenges to Rosebank and Jackdaw oil and gas developments
Cornerstone Climate, Public Law and Judicial Review
Judicial review challenges were brought in the Scottish courts against the decision of the UK Government and the North Sea Transition Authority to grant consent for the development of the Rosebank and Jackdaw oil and gas fields. Greenpeace – represented by David Welsh – brought challenges to both fields and Uplift – represented by James Findlay KC – brought a challenge in relation to the Rosebank field. Those challenges were stayed pending the decision in Finch from the UK Supreme Court because one of the grounds of challenge in each case was that there had been a failure properly to assess the effect of downstream emissions from the respective developments.
The cases called in the Court of Session last week in order to determine how they were to proceed in light of the decision in Finch and, just prior to the hearing, the UK Government confirmed that it accepts that the previous Secretary of State’s decisions to agree to the grant of consent for the projects in the Rosebank and Jackdaw fields are unlawful.
The question, then, is what happens next. The court heard from the developers and from the UK Government and the NSTA. The cases are at an early stage of procedure, but it would appear that the focus of future hearings will be on the form of remedy that the court should grant. Although it would appear that the UK Government intends to take a broadly neutral stance, it seems that the developers intend to ask the court not to quash the decision to grant consent. The outline of their position should become clearer before the end of September as their answers to the petitions referred to above are due, as are those of the Scottish Ministers.
The ultimate remedy in each challenge, as with all judicial review proceedings, is a matter for the discretion of the court with possible options being declaratory relief (effectively a pronouncement by the court that the decisions are unlawful) through to a quashing order (or, as it is known in Scotland, an order for reduction) in relation to the decisions, meaning that the decision is sent back to the UK Government to be made again.
There is also a question as to what happens at the fields in the meantime. The court may be required to determine if the developers should be permitted to continue to develop the fields pending the resolution of the judicial reviews and, if necessary, the retaking of the decisions on consent.
Whilst there remains a number of uncertainties, these are important challenges as the courts throughout the UK start to determine how to apply the landmark decision in Finch. They will be watched closely by developers, campaigners and the Government.
Cornerstone – through the members of its practice group, Cornerstone Climate – continues its strong track record of involvement in climate cases and of giving strategic, carbon-literate advice, including to all levels of government and internationally.
