Permission for New North Sea Oilfields Quashed in Another Interesting Analysis of Remedy
Planning and Environment, Public Law and Judicial Review, Cornerstone Climate

Today, the Court of Session in Scotland quashed the decisions 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.
Rosebank is estimated to be the largest undeveloped oil and gas field in the UK continental shelf. The first production of oil was expected to be in 2026-2027. In the period to 2030, Equinor estimated the field would produce 7% of the UK’s oil crude output and for the period 2032-2035, around 4.5% of the UK’s gas production. Jackdaw was expected to commence production in 2026 and produce for around eight years, with the Shell anticipating that it would at its peak produce around 6.5% of the UK’s gas production
The parties had agreed that the decisions to grant consent were unlawful in light of the Supreme Court’s judgment in Finch, as the Environmental Impact Assessments did not consider the effect on climate of the combustion of the oil and gas to be produced. The question was, what should happen next? As with all judicial review proceedings, the ultimate remedy is a matter for the Court’s discretion with possible options being declaratory relief (effectively a pronouncement by the court that the decisions are unlawful – argued for by the developers) 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 was also a question as to what happens at the fields in the meantime, and whether the developers should be permitted to continue to develop the fields, including producing oil and gas from them. That latter question required to be considered both (i) pending the resolution of the judicial reviews, and (ii) pending the retaking of the decisions on consent.
Lord Ericht ruled that the decisions should be reduced and taken again, this time taking the effect of downstream emissions into account. In deciding on the appropriate remedy, he considered the appropriate balance of public and private interests. Interesting, in that analysis, he included not just the private financial interests of the developers, but the private interest of members of the public in climate change. He concluded:
“the balance lies in favour of granting reduction. The public interest in authorities acting lawfully and the private interest of members of the public in climate change outweigh the private interest of the developers. The factors advanced by Shell, Equinor and Ithaca in respect of their private interest do not justify the departure on equitable grounds from the normal remedy of reduction of an unlawful decision.”
The reduction will be suspended until a fresh decision is reached. Lord Erich held it would be disproportionate to require work on the projects to cease completely with immediate effect, as they are complex engineering projects dependant on the co-ordination of many time-limited factors, and ceasing work would cause significant disruption. But the Court made it clear that no oil or gas can be extracted from the sites during the suspension period and that any continuation of preparatory works would be at the developers’ risk.
In refusing the developers’ request to be allowed to produce oil and gas, the Court held that it was not equitable to do so. To allow extraction to take place prior to re-consideration would frustrate that purpose of the Environmental Impact Assessment Directive and Regulations, which is that activities giving rise to emissions must not begin until the emissions are assessed. Additionally, Lord Ericht considered that there will likely be a lengthy period before redetermination: indeed, the UK Government has confirmed that no new fields, including Rosebank and Jackdaw, would be considered for approval until the government has concluded its consultation on guidance for the proper assessment of the effect of downstream emissions of offshore oil and gas development. The Court concluded that it would be against the interests of good administration if, rather than this exercise running its course and a proper assessment being made on re-consideration, the exercise was cut short and the downstream emissions were assessed on a basis which turned out to be unsatisfactory.
Three members of Cornerstone Climate were involved in these applications: David Welsh was instructed by Greenpeace in the challenges to both fields, James Findlay KC was instructed by Uplift to make the claim against the Rosebank field, and Ruchi Parekh provided assistance to Uplift during the EIA consultation stage.
The decision marks another important milestone in the way courts throughout the UK will approach environmental and climate change litigation.