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OUTER HOUSE, COURT OF SESSION
[2025] CSOH 10
P560/22, P967/23, P1158/23
OPINION OF LORD ERICHT
In the Petitions
by
(FIRST) GREENPEACE LIMITED
Petitioner
for
Judicial review of the lawfulness of the grant of consent given by the Secretary of State for
Business Energy and Industrial Strategy under Regulation 14 of the Offshore Oil and Gas
Exploration, Production, Unloading and Storage (Environmental Impact Assessment)
Regulations 2020 and the grant of consent under Regulation 15 of the 2020 Regulations by
the Oil and Gas Authority to BG International Limited for the development of and
production from the Jackdaw Field
Petitioner: Crawford KC, Welsh; Harper Macleod LLP
First Respondent (Advocate General for Scotland): Pirie KC, Tariq KC; Office of the Advocate
General
Second Respondent (The Oil and Gas Authority also known as North Sea Transition Authority):
Moynihan KC, E Campbell; Drummond Miller LLP
First Interested Party (BG International Ltd): Christine O'Neill KC, Solicitor Advocate, D Scullion;
Brodies LLP
(SECOND) GREENPEACE LIMITED
Petitioner
for
judicial review of the lawfulness of the agreement to the grant of consent under regulation
14 of the Offshore Oil and Gas Exploration, Production, Unloading and Storage
(Environmental Impact Assessment) Regulations 2020 by the Secretary of State for Business,
Energy and Industrial Strategy and of the grant of consent under regulation 15 of the
Offshore Oil and Gas Exploration, Production, Unloading and Storage (Environmental
Impact Assessment) Regulations 2020 by the Oil and Gas Authority to Equinor UK Limited
for the development of and production from the Rosebank Field.
Petitioner: Crawford KC, Welsh; Harper Macleod LLP
First Respondent (Advocate General for Scotland): Pirie KC, Tariq KC; Office of the Advocate
General
Second Respondent (The Oil and Gas Authority also known as North Sea Transition Authority):
Moynihan KC, E Campbell; Drummond Miller LLP
First Interested Party (Equinor UK Ltd): MacGregor KC, Breen; CMS Cameron McKenna
Nabarro & Olswang LLP
Third Interested Party (Ithaca SP E&P Ltd): McBrearty KC, R Anderson; Pinsent Masons LLP
(THIRD) UPLIFT
Petitioner
for
judicial review of (first) the agreement to the grant of consent in terms of Regulation 14 of
the Offshore Oil and Gas Exploration, Production, Unloading and Storage (Environmental
Impact Assessment) Regulations 2020 by the Secretary of State for Energy Security & Net
Zero; and (second) the grant of consent in terms of Regulation 15 of the said Regulations by
the Oil and Gas Authority, for the development of and production from the Rosebank Oil
Field
Petitioner: Duncan KC, Colquhoun; Davidson Chalmers Stewart LLP
First Respondent (Advocate General for Scotland): Pirie KC, Tariq KC; Office of the Advocate
General
Second Respondent (The Oil and Gas Authority also known as North Sea Transition Authority):
Moynihan KC, E Campbell; Drummond Miller LLP
First Interested Party (Equinor UK Ltd): MacGregor KC, Breen; CMS Cameron McKenna
Nabarro & Olswang LLP
Third Interested Party (Ithaca SP E&P Ltd): McBrearty KC, R Anderson; Pinsent Masons LLP
3
29 January 2025
Introduction
[1]
A developer must not commence a project in respect of offshore oil and gas without:
(a) the Secretary of State's agreement to the grant of consent by the Oil and Gas
Authority (now known as the North Sea Transition Authority) ("OGA"); and
(b) the consent of the OGA
(Offshore Oil and Gas Exploration, Production, Unloading and Storage (Environmental
Impact Assessment) Regulations 2020 (the "2020 Regulations"), Regulation 4).
[2]
These three petitions relate to oil or gas projects in the North Sea and North Atlantic.
Two non-governmental organisations, Greenpeace and Uplift, seek to challenge (a) the
decision of the Secretary of State to agree to the OGA's grant of consent, and (b) the decision
of the OGA's to grant consent. In Petition P560/22, (the "Greenpeace Jackdaw Petition")
Greenpeace challenges the decisions in relation to the Jackdaw project. In Petition P967/23,
(the "Greenpeace Rosebank Petition"), Greenpeace challenges the decisions in relation to the
Rosebank project. In Petition P1158/23, (the "Uplift Rosebank Petition"), Uplift challenges
the decisions in relation to the Rosebank project.
[3]
All parties are agreed that the decisions were unlawful as the Environmental Impact
Assessments ("EIA") on which they were based did not assess the effect of downstream
emissions (sometimes also referred to as Scope 3 emissions), ie the effect on climate of the
combustion of the oil and gas to be produced.
[4]
The issue in this case is what remedy the court should grant in respect of these
admittedly unlawful decisions. Should the decisions be reduced (quashed) and made again
on a proper and lawful basis taking into account downstream emissions? Or should the
4
court grant declarator rather than reduction, so that the decisions stand and the projects
proceed despite the decisions being unlawful.
The Jackdaw project
Introduction
[5]
The developer of the Jackdaw project, and the First Interested Party in the
Greenpeace Jackdaw Petition, is BG International Limited. BG International Ltd is part of
the Shell group of companies. As various other companies in that group are involved in the
Jackdaw project, it is convenient to refer collectively to Shell rather than referring
individually to BG International Limited and other particular companies within the Shell
group.
[6]
Both Greenpeace and Shell have lodged affidavits relating to the Jackdaw project.
Greenpeace have lodged an affidavit from Dr Doug Parr, the chief scientist and policy
director for Greenpeace. Shell have provided an affidavit from Mr Simon Roddy who has
been the leader for the Shell UK Upstream business since May 2021 and is the Decision
Executive for the Jackdaw project. Mr Roddy is responsible for making the key decisions in
relation to the project. The content of these affidavits is disputed. This judicial review is
proceeding in the normal way on the basis of documents and legal submissions and not
hearing witness evidence, and it is not for me to resolve the differences between the
affidavits or make findings of fact on matters in dispute. Nevertheless, the affidavits are
useful by way of background and to inform the court of the positions of Greenpeace and
Shell.
5
The Jackdaw project
[7]
The Jackdaw field is an ultra-high pressure/high temperature ("uHPHT") gas
condensate field located in the Central North Sea. The Jackdaw development will comprise
a "not permanently attended installation" consisting of a wellhead platform with four wells,
connected via a 30 km subsea pipe to the existing operational Shearwater hub which is
operated by Shell. All operational support for Jackdaw will be provided by the existing
Shearwater facility. All processing of the gas and fluid extracted from the Jackdaw Field
will be carried out at Shearwater. Gas and condensate will then be exported to the mainland
separately via Shearwater's export pipelines.
[8]
Works at the Jackdaw field are expected to be completed in the first half of 2026, with
production commencing later in 2026.
[9]
Jackdaw is expected to produce for around 8 years. According to Mr Roddy, the
Jackdaw field is expected, at its peak, to produce around 6.5% of the UK's gas production.
The work involved in the Jackdaw project
[10]
Mr Roddy explains that there are four key elements of the project. The drilling of the
four wells was commenced in August 2023 and as at the end of August 2024 was 52%
complete at a cost of £220m. The sub-sea pipeline was installed in July 2024 and as at the
end of August 2024 the pipeline system was 57% complete at a cost of £170m. The
construction of the wellhead platform was commenced in the third quarter of 2022,
approximately a month after the OGA consent on 1 June 2022, and as at the end of
August 2024 was 90% complete at a cost of £275m. The modifications to the Shearwater
platform were commenced in April 2024 and as at the end of August 2024 were 77%
complete at a cost of £48m.
6
Making the Jackdaw project safe
[11]
Mr Roddy explains that if Shell were required to suspend the works at the Jackdaw
field, it could do so in a safe manner. However, this would be a complex exercise. It is
technically feasible to suspend work on the wells only when an uHPHT section of the well
has been made safe. Drilling of the first well is complete and has been made safe by the
installation of a "Christmas tree". It is anticipated that all four wells will be completed by
around June 2025. Suspension of the works would have an impact on Shell's ability to
secure the specialist service companies and specialist equipment available at present and
required when the works restarted. Essential works to be completed to make the pipeline
safe for other seafarers would extend until spring 2025. A guard vessel or temporary
navigation aid would be required to protect the jacket from vessel collision. The estimated
cost of a 12 month suspension would be at least £200million plus a significant delay to
project start up.
Effect of delay on the Jackdaw project
[12]
In addition to the costs of making the works safe, Mr Roddy has identified other
consequences of delay. Shell has entered into various contracts with other commercial
parties in relation to the export of gas and liquids from the field in the expectation of
production commencing at the latest in the third quarter of 2026. If production is delayed
Shell may be required to pay compensation under the contracts, or the contracts may be
terminated. The jobs of the 1000 workers involved in the construction of the project would
be at risk and they might take other work or move abroad and be difficult to replace once
the project re-commenced. A delay in the start of production would reduce the overall
amount of gas that could be produced from the field by 2 to 5 million barrels as there will be
7
less available time to recover the gas reserves from the Jackdaw field prior to cessation of
production at Shearwater.
Effect of cancellation of the Jackdaw project
[13]
If the Jackdaw project were required to stop permanently, decommissioning of the
already installed infrastructure would be required at a cost estimated by Mr Roddy to
exceed £350million.
The Rosebank project
Introduction
[14]
The developer of the Rosebank project, and the First Interested Party in the
Greenpeace Rosebank and Uplift Rosebank Petitions is Equinor UK Limited. The Third
Interested party in the Greenpeace Rosebank and Uplift Rosebank Petitions is Ithaca SP E&P
Ltd. Ithaca obtained an interest in Rosebank by its acquisition of Siccar Point Energy in
July 2022. Equinor holds an 80% interest in Rosebank with Ithaca holding 20%. Equinor
acts as an "operator", undertaking the day-to-day management of Rosebank and employing
or engaging the majority of staff. Ithaca acts as a "non-operator", maintaining an active
oversight role. As Ithaca was not listed as an interested party in either the Greenpeace
Rosebank Petition nor the Uplift Rosebank Petition, these petitions were originally served on
Equinor and not Ithaca. On 20 August 2024, Ithaca was given leave to enter each process in
each of the Rosebank Petitions as an interested party.
[15]
Greenpeace, Uplift, Equinor and Ithaca have lodged affidavits relating to the
Rosebank project. Greenpeace has lodged an affidavit by Dr Parr. Uplift have lodged
affidavits by Dr Daniel Jones (Head of Research at Uplift) and Tessa Khan (Executive
8
Director of Uplift). Equinor has lodged affidavits by Aud Lisbeth Hove, (Vice President
Project Management and Control and Rosebank Project Director) and Valerie Appleyard
(Environmental advisor for the Rosebank project). Ithaca has lodged an affidavit by
Iain Lewis (Chief Financial Officer of Ithaca). As with the affidavits in the Greenpeace
Jackdaw Petition, these affidavits are useful by way of background and to inform the court
of the positions of Greenpeace, Uplift, Equinor and Ithaca, but I make no findings of fact in
relation to them. Equinor also produced an affidavit from Mark Wilson, a director of the
trade body Offshore Energies UK, setting out the views of that trade body and its members
on various general issues, which I found to be of little assistance in the resolution of the
particular issues arising in these petitions.
The Rosebank project
[16]
The Rosebank project comprises a Floating Production, Storage and Offloading
("FPSO") vessel and three subsea production templates with up to seven production wells,
five water injection wells and an export pipeline.
[17]
Mr Lewis explains that Rosebank is estimated to be the largest undeveloped oil and
gas field in the UK continental shelf. The first production of oil is expected to be
in 2026-2027. Rosebank is estimated to have recoverable resources of over 300 million
barrels of oil equivalent and a production life of around 25 years. In the period to 2030 it is
estimated that the field will produce 7% of the UK's oil crude output. The field will produce
in excess of 21 million standard cubic foot of natural gas per day, equivalent to the daily
usage of Aberdeen. Ms Hove states that Rosebank is expected to produce around 4.5% of
the UK's gas production for the period 2032-2035.
9
[18]
Ms Appleyard notes that guidance is required as to how to calculate the downstream
emissions as there are several different ways to do the calculation. She states that the
Rosebank average annual production equates to approximately 2.5% of UK oil and gas
energy demand and to between 0.017% and 0.036% of global oil and gas energy demand.
[19]
Dr Parr has made a rough calculation of the downstream emissions. He concludes
that the combined emissions from both Rosebank and Jackdaw will likely be responsible for
0.00006345 degrees Celsius of global warming. He also calculates that as a result of Jackdaw
and Rosebank there will be approximately 32,000 additional heat related deaths until 2100,
with that figure being purely from heat-related deaths and not from other climate impacts.
Activity prior to the grant of consent/commencement of judicial review proceedings
[20]
Ms Hove explains that the Rosebank project is a complex and long-term endeavour
with work streams that take many years of planning and preparation. By the time the
judicial review proceedings were commenced by the petitioners in late 2023, Equinor had
placed more than 260 different contracts, committed funding of £1.87 billion and spent
£466 million. Ms Hove does not provide a break down as to which of these contracts were
entered into, and what funds were committed or expended, in the period prior to the grant
of consent on 27 September 2023 and the period between then and the commencement of the
first judicial review proceedings in November 2023. However, it is clear that significant
commitments were made before the granting of the consent. For example, a bareboat
charter for the FPSO vessel was entered into in January 2023 and Subsea production system,
Umbilicals, Risers and Flowlines ("SURF") contracts were placed in March 2023. She
explains that in entering into investment decisions and contracts prior to the granting of
consent, Equinor acted on the basis that following Greenpeace v Advocate General and an
10
email from OPRED dated 1 June 2022, that there was no need to include downstream
emissions in the Environmental Statement and also acted on the basis that the OGA and the
UK government were supportive of the development.
[21]
Mr Lewis explains that the deliberations concerning the final decision on whether to
invest are often called the "Final Investment Decision". Although often spoken about as a
single decision, it is a series of decisions over a period where the company moves closer to
publicising its commitment to the project. Internal deliberations and deliberations with
Ithaca's partners were underway during much of 2023. Ithaca announced the Final
Investment Decision on 27 September 2023, in the context of the OGA grant of consent on
the same day. The FID was taken against a supportive UK policy landscape, which included
the principal objective under section 9A of the Petroleum Act 1998 of "maximising the
economic recovery of UK petroleum", and fifteen meetings between Ithaca and government
ministers from 7 April 2022 in which the government actively encouraged Ithaca's
investment in Rosebank. In considering whether to make the FID, Ithaca was aware that a
judicial review challenge was a possibility.
The work involved in the Rosebank project
[22]
Work is ongoing to upgrade the FPSO vessel. Engineering and procurement of the
SURF equipment commenced in 2023. Installation of the SURF equipment can only be done
during suitable weather windows and three windows have been identified for this: 2024,
spring/summer 2025 and spring/summer 2026. Drilling is scheduled to commence in the
first/second quarters of 2025.
11
Effect of delay of the Rosebank project
[23]
Ms Hove considers that there is a real risk that if there is a delay to allow
re-consideration of the consent, the work due to be done in 2025 could not be rescheduled
to 2026. This is for various reasons, including the limited availability of specialist vessels
which must be contracted and scheduled several years in advance. A one year delay in
relation to the consents would actually delay the project by two years or more. An even
longer delay would likely arise if it was necessary to cancel the existing contracts and re-
tender, rather than just negotiate extensions to the existing awarded contracts. There would
also be additional costs for a 1 year delay in the region of £300 million in respect of SURF
works and £95 million in respect of the drilling and wells works, and for a two year delay
£500 to £600 million in respect of the SURF works and £210 million for the drilling and wells
works. If vessels are redeployed on other projects Equinor may not be able to secure them
for use at the next available weather window and Equinor will be in a weaker negotiating
position which may lead to increased costs. Equinor estimates that a one year delay in the
taking of new decisions on the grant of consent would result in at least a two to three year
delay in first oil and commencement of production and Equinor may be required to pay
compensation under various contracts, or the contracts may be terminated.
[24]
Ms Hove further explains that the Rosebank project is expected to create
2,000 UK-based jobs during the height of the development phase and will continue to
support and average of approximately 525 UK-based jobs during the lifetime of the field.
The precise impact on jobs of suspending the works at Rosebank is difficult to predict, but
several hundred workers could be exposed to the risk of redundancy.
12
Effect of cancellation of the Rosebank project
[25]
Ms Hove states that if the Rosebank project does not go ahead, there will be no
opportunity for the UK government to receive the significant tax receipts that will be
generated by the project. She also states that the project will support local and UK
employment during construction, operation and decommissioning stages over a 30 year life-
span: it is estimated that it will support the equivalent of 13,293 man-years of full time
employment, of which around 72% will be in the UK.
Grounds of review
[26]
Although various grounds of review were pled, only three were insisted upon. The
first, which was relied on by each petitioner in each of the three petitions, was that that the
decisions were unlawful as they did not take account of downstream emissions. The other
two grounds were relied on only by Uplift and arose only in the Uplift Rosebank Petition.
These were ground 4 in that petition (failure to take the Scottish National Marine Plan into
consideration) and ground 6 in that petition (failure of the OGA to give reasons).
Ground of review in all three petitions: Finch
[27]
In each of the Greenpeace Jackdaw, Greenpeace Rosebank and Uplift Rosebank, the
petitioners challenged the decisions of the Secretary of State and the OGA on the basis that
they are unlawful as they did not take account of downstream emissions as required by
[28]
Article 2(1) of the Parliament and Council Directive 2011/92/EU, as amended by
Directive 2014/52/EU (the "Directive"), requires member states to adopt all measures
necessary to ensure that, before development consent is given, projects likely to have
13
significant effects on the environment are made subject to a requirement for development
consent and an assessment with regard to their effects on the environment. Article 3(1)
requires that "the environmental impact assessment shall identify, describe and assess in an
appropriate manner ... the direct and indirect effects of a project" on various factors, one of
which is climate. The Directive has been transposed into UK law through a series of
statutory instruments applicable to different types of project for which, under the Directive,
development consent and an economic impact assessment are required. In respect of
offshore oil and gas, the Directive has been transposed into UK law previously by the
Offshore Petroleum Production and Pipe-lines (Assessment of Environmental Effects)
Regulations 1999 (the "1999 Regulations"), and currently by the 2020 Regulations. In respect
of onshore oil and gas in England, the Directive has been transposed into English town and
country planning law by the Town and Country Planning (Environmental Impact
Assessment) Regulations 2017 (the "2017 Regulations").
[29]
In Finch, a developer applied to the local planning authority for planning permission
for a project to extract oil at an onshore site in Surrey. The planning authority accepted as
sufficient an Environmental Statement which assessed only direct releases of greenhouse
gases at the project site over the lifetime of the project, and contained no assessment of the
impact on climate of the combustion of the oil. The Supreme Court held by a majority of
three to two that the council's decision to grant planning permission was unlawful because
the EIA for the project failed to assess the effect on climate of the combustion of the oil to be
produced (paragraph 174).
[30]
That finding of the Supreme Court as to the proper interpretation of Directive as it is
transposed to English law under the 2017 Regulations, is equally applicable to the proper
interpretation of the Directive as it is transposed to UK law under the 2020 Regulations. The
14
decision of the Supreme Court is binding on this court, and accordingly the petitioners must
succeed on this ground. In respect of both the Jackdaw project and the Rosebank project,
both the Secretary of State's agreement to the OGA's grant of consent, and the grant of the
consent of by the OGA, were unlawful because the environmental assessments for each
project failed to assess the effect on climate of the combustion of the oil or gas to be
produced.
Chronology of Finch
[31]
Before leaving Finch, it is useful at this stage to set out the chronology of the Finch
case and how that inter-relates with the chronology of the granting of consents for the
Jackdaw and Rosebank fields.
[32]
On 21 December 2020, the first instance decision in Finch was issued. Holgate J
[33]
On 7 October 2021 the decision of the Inner House in Greenpeace v Advocate General
was issued. That was a challenge to decisions of the Secretary of State and the OGA
granting consent in relation to the Vorlich oil field in the North Sea. The decisions were
made under the 1999 Regulations, which provided for a statutory appeal rather than judicial
review, and have now been replaced by the 2020 Regulations. The Inner House held that
downstream emissions were not direct or indirect effects of a project and did not require to
be assessed in terms of the Regulations (para [64]). In so doing they expressly agreed
(para [65]) with the reasoning of Holgate J at first instance in Finch. The Inner House refused
the appeal and the challenge failed.
15
[34]
On 14 January 2022, the Inner House refused leave to appeal to the Supreme Court in
Greenpeace v Advocate General.
[35]
On 17 February 2022, the decision of the Court of Appeal in Finch was delivered
(Lewison LJ, Lindblom SPT) concluded that the downstream emissions were not relevant
effects of the project and therefore did not have to be addressed in the environmental impact
assessment. In his dissenting judgment Moylan LJ took the view that that conclusion was
legally flawed (paragraph 95).
[36]
On 27 May and 1 June 2022 respectively, in respect of the Jackdaw field, the Secretary
of State agreed to the OGAs consent and the OGA granted consent, and the decisions were
published on 1 June 2022.
[37]
First orders in the Greenpeace Jackdaw Petition were granted on 15 July 2022.
Shortly thereafter, on 27 July 2022, the petition was sisted (stayed) on the unopposed motion
of Greenpeace pending the decision of the Supreme Court in Finch.
[38]
On 3 August 2022, Equinor submitted the Rosebank Environmental Statement.
[39]
On 9 August 2022, the Supreme Court granted leave to appeal in Finch.
[40]
On 21 and 22 June 2023 the Supreme Court heard Finch.
[41]
On 16 June and 27 September 2023 respectively, in respect of the Rosebank field, the
Secretary of State agreed to the OGAs consent and the OGA granted consent, and the
decisions were published on 28 September 2023.
[42]
First orders in the Greenpeace Rosebank Petition were granted on 2 November 2023.
Shortly thereafter, on 15 November 2023, the petition was sisted on the unopposed motion
of Greenpeace pending the decision of the Supreme Court in Finch.
16
[43]
First orders in the Uplift Rosebank Petition were granted on 18 December 2023, and
shortly thereafter, on 8 January 2024, the petition was sisted on the unopposed motion of
Uplift pending the decision of the Supreme Court in Finch.
[44]
On 20 June 2024 the Supreme Court delivered its decision in Finch.
[45]
On 1 July 2024 the sists in all three petitions were recalled to fix a by order hearing on
30 August 2024 to consider further procedure, and thereafter the petitions proceeded to a
substantive hearing on 12 to 15 November 2024.
[46]
Two points in particular can be taken from this chronology.
[47]
The first is that the law on whether downstream emissions should be included in the
environmental assessment was uncertain prior to the granting of the consents for each field:
the split decision of the Court of Appeal predates the granting of the consents. The Jackdaw
consent was granted after the split decision of the Court of Appeal in Finch. In respect of
Rosebank, the Secretary of State's agreement to that the OGA consent was granted 5 days
before the Supreme Court heard argument in Finch, and the OGA consent was granted after
the Supreme Court had heard that argument.
[48]
The second is that in commencing the projects after the granting of consents rather
than waiting until the law was settled by the Supreme Court, the developers took the risk
that the consents would be unlawful if the Supreme Court decided that downstream
emissions must be included in environmental assessments.
17
Ground four of the Uplift Rosebank Petition: failure to take the Scottish National Marine
Plan ("NMP") into consideration
[49]
Uplift seeks reduction on the ground that the OGA and the Secretary of State were
obliged to take the NMP into consideration in making their decisions regarding the
proposed development at Rosebank, and failed to do so.
[50]
This ground is unfounded.
[51]
Uplift are correct to say that the Secretary of State was obliged to take the NMP into
consideration. Section 58(1) of the Marine and Coastal Access Act 2009 provides that a
public authority must take any authorisation decision in accordance with the appropriate
marine policy documents, unless relevant considerations indicate otherwise. Section 58(2)
provides that if such an authority takes such a decision other than in accordance with such
documents, the public authority must state its reasons. The Secretary of State is such a
public authority, and the appropriate marine policy documents are the NMP.
[52]
However Uplift are wrong to say that the Secretary has failed to take the NMP into
consideration. The NMP was considered in detail in the Rosebank Environmental
Statement. Indeed, Appendix A to the Environmental Statement is headed "Alignment
Between the Development and the Scottish National Marine Plan". The Environmental
Statement was expressly taken into account by the Secretary of State and he took his
decision in accordance with the NMP. Accordingly, the Secretary of State has complied with
his duties under section 58.
[53]
In respect of the OGA, the situation is reversed: Uplift are correct to say that the
OGA did not consider the NMP but incorrect to say that the OGA was under a duty to do
so.
18
[54]
The 2020 Regulations set out an overall decision-making process with separate roles
for the Secretary of State and the OGA. Within that overall process, responsibility for
consideration of the NMP lies with the Secretary of State and not the OGA.
[55]
The first stage of the decision-making process lies with the Secretary of State. When
taking a decision as to whether to agree to the grant of consent, the Secretary of State must
reach a conclusion on the significant effects of the project on the environment
(Regulation 14(1)) and that conclusion must take into account the Environmental Statement
(Regulation 14(2)). The NMP is considered as part of the Environmental Statement. So, for
example, in this case the NMP was considered as it was part of the Rosebank Environmental
Statement, in particular Appendix A.
[56]
The second stage of the decision-making process lies with the OGA. Once the
Secretary of State has made his decision as to whether to agree to the consent, the OGA must
then decide whether to grant consent (Regulation 15(1)(a)). In so doing the OGA considers
various matters (see para [60] below). There is no requirement in the 2020 Regulations for
the OGA to duplicate the work already done by the Secretary of State. Where the OGA
grants consent, it does not re-consider the matters already considered by the Secretary of
State and come to its own separate independent decision on them: the OGA merely attaches
the Secretary of State's decision to its own decision (Regulation 15(2)). The NMP having
already been considered in detail by the Secretary of State as part of the first stage of the
overall decision making process, the OGA was under no duty to repeat that work in the
second stage of the overall process.
19
Ground six of the Uplift Rosebank Petition: failure of the OGA to give reasons
[57]
Uplift also seeks reduction of the OGA decision on the ground that the OGA failed to
give reasons for its decision to grant consent.
[58]
Counsel for Uplift accepted that there was no statutory requirement to give reasons,
but submitted that a separate duty to provide reasons had arisen at common law as an
aspect of the general duties of procedural fairness and natural justice (R v Secretary of State
for the Home Department, ex parte Doody [1994] 1 AC 531, at 560, R (on the application of Help
Refugees Ltd) v Secretary of State for the Home Department [2018] 4 WLR 168, at paragraph 122.)
In deciding whether to grant consent, the OGA must have regard to the matters set out in
section 8(1) of the Energy Act 2016 and how it is acting in accordance with its strategy under
section 9A of the Petroleum Act 1998 of maximising the economic recovery of UK
Petroleum. Counsel for the OGA submitted that the 2020 Regulations set out the
circumstances in which reasons require to be given, and the OGA was not under a wider
obligation to provide reasons (R (CPRE Kent) v Dover DC [2018] 1 WLR 108, Purdon v City of
Glasgow District Licensing Board 1989 SLT 201; Stefan v General Medical Council 1999 1
WLR 1293 at p1300).
[59]
The 2020 Regulations set out in detail how the Secretary of State, in the exercise of his
discretion, has decided to implement the Directive. In particular, they set out how the
Secretary of State has implemented the requirement under Article 2(1) of the Directive to
adopt measures necessary to ensure that before development consent is given, projects likely
to have significant effects on the environment are made subject to a requirement for
development consent and an assessment with regard to their effects on the environment.
The 2020 Regulations set out a clear statutory scheme in respect of the giving of reasons. If
the Secretary of State agrees to the grant of consent he must set out his conclusion on any
20
significant effects of the project on the environment (Regulation 14(3)). If the Secretary of
State refuses to agree to the grant of consent he must set out the main reasons for that refusal
(Regulation 14(4)). The Secretary of State's decision is then published, together with details
of how any representations arising from the consultation process were taken into account
(Regulation 16). If the Secretary of State has agreed to the grant of consent, but the OGA
does not grant consent, the OGA must notify the developer of the reasons for its decision
(Regulation 15(4)). Where, as happened in respect of Rosebank, the OGA grants consent, the
OGA attaches to the OGA's notification the Secretary of State's decision (15(2)), and there is
no obligation under the 2020 Regulations for the OGA to give reasons.
[60]
In considering whether to grant consent, the OGA considers various factors set out in
its published Financial Guidance and its published UK Continental Shelf Development and
Production Consent Guidance. The OGA requires the developer to provide it with detailed
information about these factors. One factor is the financial capacity of the developer
(Financial Guidance). Another factor is that the OGA assesses whether the proposed project
accords with the obligations set out in the OGA Strategy, including the Central Obligation
under the Strategy to (a) secure that the maximum value of economically recoverable
petroleum is recovered from UK water, and in so doing (b) take appropriate steps to assist
the Secretary of State in meeting the net zero target, including reducing greenhouse gas
emissions from sources such as flaring and venting and power generation (Consent
Guidance paragraph 3-4). Other factors relate to technical matters regarding the proposed
project (eg Consent Guidance paragraph 7, 12, 40, 58, 121). The OGA also considers
commercial factors such as the developer's supply chain (Consent Guidance paragraph 70
ff). In order to satisfy the OGA on the various factors, the developer requires to provide the
OGA with highly sensitive confidential business, operational and financial information. The
21
sensitivity of such information is reflected in the statutory scheme set out in the
2020 Regulations, which provides:
"20. Confidentiality
Nothing in these Regulations requires the disclosure of information which is subject
to an obligation of confidentiality by virtue of any law of any part of the United
Kingdom."
[61]
In R (CPRE Kent) v Dover DC Lord Carnwath emphasised that "the court should
respect the exercise of ministerial discretion in designating certain categories of decision for
a formal set of reasons." (paragraph 58)
[62]
In my opinion the court is not justified in interfering with the ministerial discretion
exercised in designating, in the 2020 Regulations, what categories of decision require reasons
and what categories of decision do not. Ministerial discretion has been exercised in
designating the environmental impact assessment as a category for which formal reasons
must be given (and indeed published), and in designating the other matters considered by
the OGA as a category for which reasons need not be given.
[63]
That is a rational distinction.
[64]
There is a strong public interest in requiring the provision of reasons in respect of
environmental matters. As Lord Leggatt says in Finch (emphasis added):
"20
Obligations arising under the Aarhus Convention have been built into
articles 6, 8 and 9 of the... Directive. ..... article 9(1) provides that the public must be
promptly informed of the decision taken and of `the main reasons and considerations
on which the decision is based, including information about the public participation
process'.
2
The rationale underpinning these public participation requirements is
expressed in recital (16) to the ... Directive:
`Effective public participation in the taking of decisions enables the public to
express, and the decision-maker to take account of, opinions and concerns
which may be relevant to those decisions, thereby increasing the
accountability and transparency of the decision-making process and
22
contributing to public awareness of environmental issues and support for the
decisions taken.'
Two important ideas are included within this rationale. First, public participation is
necessary to increase the democratic legitimacy of decisions which affect the
environment. Second, the public participation requirements serve an important
educational function, contributing to public awareness of environmental issues.
Guaranteeing rights of public participation in decision-making and promoting
education of the public in environmental matters does not guarantee that greater
priority will be given to protecting the environment. But the assumption is that it is
likely to have that result, or at least that it is a pre-requisite. You can only care about
what you know about." (Paragraph 21)
[65]
There is no such strong public interest in requiring the provision of reasons for the
matters considered by the OGA. These are confidential matters. They arise between the
developer and the OGA, not between the OGA and the public or the OGA and the
petitioner. Neither of the developers involved in the Uplift Rosebank Petitions seeks
reasons from the OGA: the position of each of Equinor and Ithaca is that the OGA was
under no obligation to give reasons.
[66]
Accordingly, I find that the OGA was under no common law duty to give reasons for
granting consent, and that ground of appeal 6 fails.
Parties' submissions on remedy
Submissions for Greenpeace
[67]
Counsel submitted that the decisions should be reduced and remade in a lawful
manner with all of the relevant material available in order that the respondents observe and
fulfil their national and international obligations. The normal remedy was reduction and
refusal of that remedy should be used sparingly (R (Corus UK Limited) v Newport City
NLEI Limited v Scottish Ministers 2023 SLT 149 at 59, Douglas v Perth and Kinross Council 2017
23
government was subject to both domestic and international obligations in relation to the
reduction of greenhouse gas emission (Climate Change Act 2008, section 1, R (Fighting Dirty
Verein KlimaSeniorinnen Schweiz v Switzerland at number 3600/20 (2024) 79 EHRR 1 at
paras [103]-[120], [420], [502], [521] and [523]-[526], Stern Report, The Economics of Climate
Change 30 October 2006; Berkeley v Environment Secretary [2001] 2 AC 603 at p 608;
R (Edwards) v Environment Agency (No 2) [2008] Env LR 34 at paragraph 63.). The failure to
assess the downstream emissions could not be remedied other than by reduction (eg Finch,
Friends of the Earth Limited v Secretary State for Levelling Up, Housing and Communities
difference to the decision (Berkeley; Finch at p 152). Arguments that the development would
be a net zero development, and that other oil and gas would be used instead should be
rejected (Friends of the Earth paragraph 121-124). The emissions that have been excluded will
be significant. The principle of finality does not override unlawfulness. Energy security was
a matter for the Secretary of State and not the court. Considerations such as revenue from
taxation must be balanced against, for example, the increased costs associated with tackling
the effect of climate change. It was not relevant that the developers had been given incorrect
advice by OPRED. The developers knew that the Supreme Court decision in Finch was
awaited. Their decision to carry on with the development notwithstanding that uncertainty
was a commercial decision for them at their own risk.
24
Submissions for Uplift
[68]
Counsel accepted that reduction was a discretionary remedy which the court was at
liberty to refuse (Walton v Scottish Ministers; R (on the application of Champion) v North Norfolk
District Council [2015] 1 WLR 3710 and paragraph 54 58). The purpose of judicial review
was the preservation of the rule of law and ensuring that public bodies comply with the
duties that have been placed on them by Parliament and by the general principles of
at 162 and 169). Reduction will normally be the appropriate remedy (R (on the application of
Edwards) v Environmental Agency [2008] Env LR 34 at paragraph 36, Walton v Scottish
Ministers at paragraph 112). It could not be said that the decision if taken again would
inevitably be the same. The public had been deprived of the ability to fully participate in the
decision making process on downstream emissions, as required by the EIA Directive.
Counsel further submitted that little prejudice had been suffered by the interested parties.
The petition had been raised promptly and any development carried out by the developers
in reliance on the OGA's grant of consent was carried out by them knowingly at their own
risk. The arguments made by the respondent regarding potential benefits to the UK
economy were irrelevant: these were a matter not for the Court of Session but for the OGA
and the Secretary of State. Reduction did not invalidate all actions performed in reliance on
it (Boddington v British Transport Police [1999] 2 AC 143 at 164; R (on the application of
Majera) v Secretary of State for the Home Department [2022] AC 461).
[69]
In response to the secondary position of Equinor that any reduction should be
suspended pending re-determination, counsel for Uplift submitted that the clear intention
was to permit them to continue the development in the interim. If the Secretary of State
decides not to grant such agreement, the developers will have been permitted to continue
25
developing the project for a significant additional period of time on the basis of an unlawful
consent. It would be incompetent for the Secretary of State to reconsider the agreement
while the original agreement remained unreduced.
Submissions for the Advocate General
[70]
Counsel accepted that the decisions were unlawful on the Finch ground and invited
the court not to grant any remedy that would bring work on Jackdaw or Rosebank to a stop
in a way that risked the safety or environment of the site. An unlawful administrative
decision has legal effect until the court orders otherwise (Majera) and the court has discretion
whether to deprive an unlawful position of legal effect (Majera, Eba v Advocate General 2012
and 155 - 156. It was doubtful whether the Secretary of State had the power to re-consider
his decision while the original decision remained in force. The order sought by Equinor for
the Secretary of State to confirm the timescale for a re-consideration and the information
required was opposed.
Submissions for the OGA
[71]
The OGA accepted that the decision of the OGA to grant consent for the Jackdaw
and Rosebank projects was unlawful on the Finch ground. The remedy to be granted was a
discretionary matter for the court on which the OGA made no submissions.
Submissions for Shell
[72]
Counsel invited the court to refuse reduction, failing which suspend any reduction to
allow the decisions to be re-made or to allow safety works and the removal of equipment.
26
[73]
Counsel submitted that in judicial review petitions the element of discretion was
central and the court had power to withhold a remedy (Hooley Limited v Ganges Jute Private
Limited 2019 SC 632 at para [15], AXA General Insurance Co Limited v Lord Advocate 2012 SC
(UKSC) 122 at paragraph [161], Grahame v Magistrates of Kirkcaldy [1882] 9 R (HL) 91 at 91-2,
97, Rules of the Court of Session Rule 58(13)). The court was not bound to reduce an
unlawful decision (King v East Ayrshire Council 1998 SC 182 at 194, RBS Plc v Donnelly and
McIntyre [2020] CSOH 106 at [94] - [97], William Grant and Sons Limited v Glen Catrine Bonded
Warehouse Limited 2001 SC 901 at 930). Judicial review was a flexible procedure and the
court must not lose sight of the wider interests and good administration (King, at 196).
[74]
Counsel submitted that there was a significant public interest in ensuring that those
engaged in the development of projects can arrange their business activities with a high
level of certainty. In the whole period in which Jackdaw had been under development UK
government policy (and legislative activity) had been supportive of the project. Shell was
entitled to act in reliance of that policy and legislative position and in compliance of the law
as it then was. Shell was not at fault in omitting an assessment of downstream emissions: it
was expressly told by the OPRED that downstream emissions did not form part of the
consent process and would not be taken into account. Neither the Secretary of State nor the
OGA had suggested to Shell that it ought not to take action to implement the consent, rather
they had behaved in a business as usual fashion by granting additional consents and
permits. Counsel also referred to the length of time which had elapsed since the consent
was given and the length of time which would elapse before there could be re-consideration:
there should be no return to regulatory limbo. In the exercise of its discretion the court was
bound to consider the range of public and private interests in play (Walton at 103, 95). The
27
Jackdaw development was integral to the future viability and sustainability of other facilities
in the North Sea, in particular the Shearwater hub.
[75]
Counsel submitted that Shell's conduct should not be held against it in relation to
remedy: Shell had acted in accordance with an ex facie valid consent granted in its favour in
circumstances where it could not have any certainty as to the outcome or timing of Finch.
[76]
Counsel emphasised that Shell did not contend that the works at Jackdaw could not
be safely suspended on or reversed but rather sought to make plain the significant
operational, safety and financial challenges of doing so. Reduction of the consent could lead
to a requirement of decommissioning of the work at a cost to the public purse by virtue of
tax allowances. A fresh application for consent was not an answer given the timescale, the
practicable and financial consequences of any suspension, and the risk to viability of the
project in its entirety and the broader infrastructure in the UK North Sea.
Submissions for Equinor
[77]
Equinor's primary position was that the court should refuse reduction and instead
pronounce a declarator that the Environmental Statement prepared by Equinor in respect of
the Rosebank project was incomplete and not fully in compliance with the guidance
subsequently provided by the UK Supreme Court in Finch. It would be inequitable and
unjust to reduce the decisions given the stage the project had reached and the prejudice to
the public interest that would be occasioned by reduction. The key questions for the court
were whether Equinor should be made to bear the consequences of the failure by the
respondents in their understanding of the legal requirements of an EIA and whether the
Rosebank project should be placed in limbo for a significant period of time as a result.
28
[78]
Counsel submitted that it was uncontroversial that the court had a discretionary
equitable jurisdiction in relation to remedy(Grahame v Magistrates of Kirkcaldy, London and
Clydeside Estates Ltd v Aberdeen District Council at p31, King v East Ayrshire Council,
Walton v Scottish Ministers 2013 SC (UKSC) 67 at paragraphs 103 to 140, 155-156; Caz Rae,
[2015] Env LR 21, paragraph 114, O'Reilly v Mackman [1983] 2 AC 237 at pp.280-28, Bahamas
[79]
Counsel submitted that it would be unjust to reduce consents determined many
months before Finch was decided by the Supreme Court. That would be contrary to the
public interest in good administration. It would also be unjust as Equinor had no option but
to undertake significant works in reliance on the consent or it would have risked breaching
its license. By email dated 1 June 2022 OPRED had advised Equinor that the Environmental
Statement should not take account of downstream emissions. The issues which arise in this
case did not arise from any failure by Equinor: it would be unreasonable to require Equinor
to bear the consequences of the regulator's failure. Equinor had incurred significant expense
in commencing a complicated sequence of highly technical works and it was reasonable for
it to have done so pending the Supreme Court decision. It was not clear what the status of
the works undertaken since the grant of consent would be if reduction was pronounced
(Boddington; Archid v Dundee CC 2014 SLT 81). New decisions could not reasonably be
expected to take place until at least late 2025 or 2026. The practical consequences of
reduction would include reduced security in the midst of a European energy crisis, delayed
tax income, disruption to the supply chain and direct investment, and increased project costs
and complexity.
29
[80]
Equinor's fall-back position was that the court should suspend the effect of any
reduction until new decisions were taken and order the respondents to confirm what
information was required by each respondent to make a new decision and the time scale for
the decision to be taken. Courts can suspend the effects of any orders they make
(HM Treasury v Ahmed 2010 2 AC 534 paragraphs 4-5, Greenpeace Limited v Advocate General
for Scotland). The petitioners had not sought interim orders. Equinor required to progress
with the projects to avoid being in breach of licences and had spent very significant sums.
Reduction would cause uncertainty to the status of works undertaken. There was no cogent
material that there was likely to be any different decisions. The power to allow a new
decision to be taken prior to decree of reduction arose from the equitable jurisdiction of the
court to fashion practical remedies in public law cases and all the concerns of the Advocate
General could be addressed by way of a suitably clear declarator. The competence of new
decisions being taken prior to reduction of the original decision was not in doubt
(R (Rockware Glass) Limited v Chester CC 2006 EWCA Civ 992 at paragraphs 71, 74-75, R (on
paragraph 46ff). Counsel invited the court to ordain the Secretary of State and the OGA to
confirm: (i) what information is required by each respondent to make a new decision, and
(ii) the timescale for new decisions to be taken.
Submissions for Ithaca
[81]
Counsel submitted that reduction should be refused. The authorities on the court's
approach to remedies were not controversial. It was common ground that there was a
general principle that the rule of law requires that public decision making is made lawfully,
and that judicial review remedies are discretionary. Counsel acknowledged that the
30
Environmental Statement was incomplete and not fully in compliance with the guidance
subsequently provided by the Supreme Court in Finch, but submitted that a declarator was
sufficient. At the time of the Environmental Statement, the law was as set out by the Inner
House in Greenpeace v Advocate General. Equinor and Ithaca were obliged in terms of their
licence to incur preparatory work and expenditure after the grant of consent. Equinor had
sought guidance form OPRED and Ithaca and Equinor had regulated their businesses on the
assumption that the consent was lawful. If reduction were granted contracts and
expenditure incurred would be uncertain (Boddington). Competing policy considerations are
recognised in primary legislation (Petroleum Act 1998 section 9A). The grant of reduction
would have disproportionately wide implications for UK energy security policy, the UK
economy (including direct investment, employment and supply chains), the UK's offshore
energy infrastructure and security, wider commercial uncertainty and satisfying UK
demand for oil and gas. Ithaca had made a significant investment, and the consequences of
delay would be significant. Reduction would reduce the supply of oil and gas, not the
existing UK and European demand. Reduction would affect the international perception of
the UK, including its reputation for inward investment.
[82]
Counsel further submitted that if reduction were to be refused, its effect should be
suspended to allow the Secretary of State and the OGA to reconsider matters in the light of a
revised Environmental Statement.
Remedies in Scottish judicial reviews
[83]
In EBA v Advocate General for Scotland Lord Hope contrasted Scots and English law
and said:
31
".. the grounds of judicial control of administrative action in Scotland are based on
legal principle. Judicial review by the Court of Session is not an exercise of judicial
discretion, in contrast to what was said as to the position in English law in R
...[A]lthough the Court has a discretion to refuse a remedy in judicial review on
what may be described as equitable grounds, it has no discretion to refuse to
entertain a competent application: Tehrani v Secretary of State for the Home
Department 2007 SC (HL) 1, para 53." (paragraph 27)
[84]
In a further contrast to the position in England, the English concepts of mandamus,
prohibition and certiori (now known as mandatory, prohibiting and quashing orders:
Senior Courts Act 1981 section 29(1A) 1981) do not apply in Scotland. Nor does the
statutory test under section 31(6) of the Senior Courts Act that where the court considers that
there has been undue delay in making an application for judicial review, the court may
refuse to grant relief if it considers that the granting of the relief sought would be likely to
cause substantial hardship to, or substantially prejudice the rights of, any person or would
be detrimental to good administration. Nor do the statutory provisions set out in
section 29A of the Senior Courts Act 1981, which provide that a quashing order may include
provision for the quashing not to take effect until a date specified in the order, or for limiting
or removing any retrospective effect of the quashing, and set out matters to which the court
must have regard in deciding to make such provision.
[85]
The powers of the Court of Session in judicial review procedure are set out in
Rule 58.13 of the Rules of the Court of Session. The Rule implements the recommendation
of the Dunpark report that:
"If the procedure is to be effective, we consider that the judge must have the power
to grant any decree or make any order which he considers necessary or reasonable in
the interests of justice".
(Report to the Rt Hon Lord Emslie, Lord President of the Court of Session, by the Working
Party on Procedure for Judicial Review of Administrative Action (1984), (para 5))
[86]
Rule 58.13 provides:
32
"(2) In exercising the supervisory jurisdiction on a petition for judicial review, the
Lord Ordinary may--
(a)
grant or refuse any part of the petition, with or without conditions;
(b)
make any order that could be made if sought in any action or petition
including, in particular, an interim order or any order listed in
paragraph (3) (whether or not such an order was sought in the petition).
(3)
Those orders are--
(a)
reduction;
(b)
declarator;
(c)
suspension;
(d)
interdict;
(e)
implement;
(f)
restitution; and
(g)
payment (whether of damages or otherwise)"
[87]
Reduction is the Scottish equivalent of quashing. It is a remedy which is available in
various circumstances, for example to reduce a deed or other document such as a contract or
will, to reduce a court decree, or, as here, to reduce a decision challenged in a judicial
review.
[88]
In deciding how to exercise these powers, the court has a wide discretion, which can
even extend to refusing a remedy (EBA v Advocate General paragraph 27 quoted above). As
the Lord Chancellor (Selbourne) said in Grahame v Magistrates of Kirkcaldy 1882 9 R (HL) 91 at
p 96-7:
"It is inseparable from the principles of equitable jurisdiction that its exercise may be
withheld where on the balance of conflicting considerations the reasons against the
interference of a Court of equity are found to preponderate... [i]n Scotland the legal
and equitable jurisdictions have always been united, and the natural result of that
union is that strict legal rights ought not... to be enforced without regard to the
discretion which from the nature of the subject-matter, and of the interests of all
those concerned in it, ought to be exercised by a Court of equity"
[89]
The appropriate remedy in any particular judicial review is fact specific, and in
exercising its discretion the court requires to consider all the circumstances in order to arrive
at a result which is equitable in the particular circumstances of the particular case. The
33
particular factors to be taken into account will vary case by case, but may include the
following, which does not constitute an exhaustive list.
(a)
Public authorities must act in accordance with the law
[90]
It is a fundamental principle of the rule of law that public authorities must act in
accordance with the law. Accordingly, when a public authority makes an unlawful decision,
the normal remedy in a judicial review is that the decision is reduced, so long as the
unlawfulness is material to the decision. As the Lord President (Carloway) said in
delivering the Opinion of the Court in NLEI Ltd v Scottish Ministers 2023 SLT 149 at para [59]:
"... where there has been an identifiable error on the part of a decision -maker, the
court should be slow before deciding not to quash that decision. However, in order
to merit reduction of the resultant decision, the error must be a material one, in the
sense that, had it not been made, the decision might have been different (Carroll v
Scottish Borders Council, at para [66] citing Bova v Highland Council 2013 SC 510,
Lord Menzies, delivering the opinion of the court, at para [57])."
Further, Lord Hoffman said in R (Edwards) v Environment Agency (No 2) [2008] Env LR 34 at
paragraph 63:
"It is well settled that `the grant or refusal of the remedy sought by way of judicial
review is, in the ultimate analysis, discretionary' (Lord Roskill in Inland Revenue
Commissioners v National Federation of Self-Employed and Small Businesses Ltd
[1982] AC 617, 656.) But the discretion must be exercised judicially and in most cases in
which a decision has been found to be flawed, it would not be a proper exercise of
the discretion to refuse to quash it."
[91]
The exceptional nature of refusal of reduction was emphasised in Grahame v Mags of
Kirkcaldy. The magistrates had decided to build stables on ground held by them for the
inhabitants of a burgh to use as a bleaching green. The issue for the House of Lords was
whether the magistrates should be ordered to remove the stables. Lord Watson stated:
"It appears to me that a superior Court, having equitable jurisdiction, must also have
a discretion, in certain exceptional cases, to withhold from parties applying for it that
remedy to which, in ordinary circumstances, they would be entitled as a matter of
34
course. In order to justify the exercise of such a discretionary power there must be
some very cogent reason for depriving litigants of the ordinary means of enforcing
their legal rights. There are, so far as I know, only three decided cases, in which the
Court of Session, there being no facts sufficient to raise a plea in bar of the action,
have nevertheless denied to the pursuer the remedy to which, in strict law, he was
entitled. These authorities seem to establish, if that were necessary, the proposition
that the Court has the power of declining, upon equitable grounds, to enforce an
admittedly legal right; but they also shew that the power has been very rarely
exercised." (p 92)
The House of Lords did withhold the remedy in that case, but it is significant that in doing
so the court did not allow matters to continue as if no unlawfulness had taken place: instead
of removal of the stables, a different piece of the magistrates' land was substituted for use as
a bleaching green.
(b)
The practical effect of reduction
[92]
In King v East Ayrshire Council, the Lord President (Rodger), delivering the opinion of
the court, stated:
"Even where a court is satisfied that an administrative body has erred in law in
reaching their decision, the court is not bound to reduce that decision. As
Lord Hailsham LC pointed out in London & Clydeside Estates Ltd v Aberdeen District
Council at p 31 the jurisdiction to grant decree of reduction of administrative
decisions is `inherently discretionary'. In particular it is relevant for the court to
consider what practical effect the person seeking reduction will achieve if the
decision is reduced." (p 194C).
(c)
The public interest in good administration
[93]
There is a public interest in certainty and finality of decisions.
[94]
In King v East Ayrshire Council a decision of a local authority to close a school was
challenged on a ground which was not advanced until over a year after the school was
closed. The court stated:
"It is recognised that the public interest in good administration requires that public
authorities and third parties should not be kept in suspense as to the legal validity of
35
a decision for any longer than is absolutely necessary in fairness to the person
affected by it (O'Reilly v Mackman at pp 280H-281A per Lord Diplock). ... Judicial
review is a flexible procedure and the court can, of course, take account of new
matters and grant different remedies from those which are originally sought. In an
appropriate case that could be done even at a late stage, but in deciding whether to
grant a remedy on a different basis the court must not lose sight of the wider interest
in good administration which Lord Diplock describes."
[95]
King was decided prior to the introduction of a 3 month time limit for the bringing an
application to the supervisory jurisdiction of the court (section 27A Court of Session
Act 1988). As I said in respect of that time-limit in Odubajo v SSHD [2020] CSOH 2:
"It is an important principle in respect of good public administration that there
should be certainty about the validity of administrative decisions. A time limit
contributes to such certainty. Public authorities may, after the expiry of the time
limit without a judicial review application having been made, proceed on the basis
that the decision is a valid one. A third party who has an interest in the subject
matter of the decision may also proceed on that basis." (para [16])
(d)
The potential prejudice to public and private interests
[96]
Walton v Scottish Ministers was a challenge to a roads decision on the ground of
failure to comply with consultation requirements under the Environmental Assessment
Directive (Directive 85/337/EEC). Lord Goff took into account that "the potential prejudice
to public and private interests from quashing the order is very great" (para [131]).
Lord Hope stated:
"[155] The better way to meet the concerns that the Extra Division expressed about
this case ... would have been to weigh in the balance against any breach of the
Directive that the applicant was able to establish the potential prejudice to public and
private interests that would result if the schemes and orders were to be quashed.
...the fact that an individual may bring an objection on environmental grounds
derived from European directives does not mean that the court is deprived of the
discretion which it would have at common law, having considered the merits and
assessed where the balance is to be struck, to refuse to give effect to the objection.
[156] ....Where there are good grounds for thinking that the countervailing
prejudice to public or private interests would be very great, as there are in this case,
it will be open to the court in the exercise of its discretion to reject a challenge that is
36
based solely on the ground that a procedural requirement of European law has been
breached if it is satisfied that this is where the balance should be struck."
[97]
Although Walton was a statutory appeal, in my opinion the potential prejudice to
public and private interests should also be considered when the court is exercising its
discretion as to the appropriate remedy in a judicial review.
[98]
In the current case there are, broadly speaking, three main interests that require to be
balanced. The first is public interest in the Rule of Law and in public authorities acting
lawfully. The second is the private interest of members of the public in respect of climate
change issues arising out of the Jackdaw and Rosebank projects. The third is the private
interest of Shell, Equinor and Ithaca as developers of the Jackdaw and Rosebank projects.
Is the appropriate remedy reduction or declarator?
The difference in the practical effect of reduction and the practical effect of declarator
[99]
The decisions challenged in these petitions were unlawful. What remedy should the
court grant in respect of that unlawfulness? The petitioners seek reduction. Shell, Equinor
and Ithaca seek declarator.
[100]
There is a stark difference in the practical effect of these different remedies.
[101]
If the decisions are reduced, then the Secretary of State and the OGA will take them
again, but this time on a lawful basis, taking into account the downstream emissions. It may
be that they will grant the consents. It may be that they will refuse consents. That will be a
matter for them.
[102]
If declarator is granted and the decisions are not reduced, the decisions will not be
retaken. The unlawful decisions will stand. Shell, Equinor and Ithaca will progress the
projects and extract oil and gas, despite the consents being unlawful.
37
[103]
So the issue for the court comes down to whether the Secretary of State and the OGA
should be given an opportunity to reconsider their decisions (in which case the remedy will
be reduction), or whether their existing decisions should be given effect to (in which case the
remedy will be declarator).
The public interest in authorities acting lawfully
[104]
In this case, the consents have been granted unlawfully.
[105]
The error is a material one, in the sense that, had it not been made, the decision
might have been different. The addition of downstream emissions will add to the
assessment process a new and significant factor which was not included on the previous
assessment and may change the result of the assessment.
[106]
In any event, in the case of a decision under the 2020 Regulations, it is not a pre-
requisite of reduction that the decision might have been different. As Lord Leggatt states
about an argument made in Finch:
"The argument made is a version of the claim that, if information about
environmental impacts would make no difference to the decision whether to grant
development consent (or on what conditions), it is not legally necessary to obtain and
assess such information in the EIA process. Such a contention was resoundingly
rejected by the House of Lords in Berkeley. It misunderstands the procedural nature
of the EIA. The fact (if it be the fact) that information will have no influence on
whether the project is permitted to proceed does not make it pointless to obtain and
assess the information. It remains essential to ensure that a project which is likely to
have significant adverse effects on the environment is authorised with full
knowledge of these consequences."
[107]
In these circumstances, the public interest in the rule of law and in authorities acting
lawfully is a strong factor in favour of reduction.
38
The private interest of members of the public in respect of climate change
[108]
The effect of the burning of fossil fuels on climate change and the lives of individual
persons is now well recognised in law.
[109]
In giving the majority judgment of the of the Supreme Court Finch, Lord Leggatt
said:
"Anyone interested in the future of our planet is aware by now of the impact on its
climate of burning fossil fuels--chiefly oil, coal and gas. When fossil fuels are burnt,
they release carbon dioxide and other `greenhouse gases'--so called because they act
like a greenhouse in the earth's atmosphere, trapping the sun's heat and causing
global surface temperatures to rise." (paragraph 1)
[110]
In Verein KlimaSeniorinnen Schweiz v Switzerland (App No 3600/20) (2024) 79 EHRR 1,
the European Court of Human Rights said:
"At the outset, the Court notes that climate change is one of the most pressing issues
of our times. While the primary cause of climate change arises from the
accumulation of [greenhouse gas] in the Earth's atmosphere, the resulting
consequences for the environment, and its adverse effects on the living conditions of
various human communities and individuals, are complex and multiple. The Court
is also aware that the damaging effects of climate change raise an issue of
intergenerational burden-sharing...and impact most heavily on various vulnerable
groups in society, who need special care and protection from the authorities."
(paragraph 410)
[111]
In considering the question of whether the remedy should be reduction or declarator,
the private interests of members of the public are engaged in two ways.
[112]
Firstly, just as the developers have an interest on the impact of the remedy on their
business, members of the public have an interest in the impact of the remedy on their lives.
[113]
Secondly, individual members of the public have an interest in being able to
contribute to the decision by expressing concerns which the decision maker can take into
account (Finch paragraph 21, see para [64] above).
[114]
In my view these private interests of members of the public weigh strongly in favour
of the decisions being reduced and remade on a lawful basis. That would mean that the
39
effect of downstream emissions on climate change would be taken into account, and
members of the public and the petitioners would be able to express their views on that in the
consultation stage of the decision-making process.
[115]
I am fortified in this view by the reasoning of the Lord President (Carloway) in
Greenpeace v Advocate General:
"[69] Had there been defects in the notification and consultation procedures, and
the appellants had been substantially prejudiced by them, it would have been
difficult for the court to resist affording the appellants the remedy which they seek;
i.e. a quashing (reduction) of the consent. Regulation 16 makes it clear that the power
to afford the appellants that remedy is a permissive rather than a mandatory one. In
that context, no doubt all the circumstances have to be taken into account (King v East
Ayrshire Council, LP (Rodger) at p.194 (p.1294)). Nevertheless, if a consent has been
obtained, in a situation in which the appellants had been deprived of their right to
make representations and to be consulted, the effect is that the consent has been
obtained unlawfully. It can hardly be argued that, as a significant campaigner on
fossil fuel issues, the appellants did not have a substantial interest, in a practical
sense, in the outcome (ibid)."
Although that reasoning was set out in an appeal under the 1999 Regulations, it is equally
applicable in principle to a judicial review under the 2020 Regulations.
The private interests of the developers in respect of the projects
[116]
Shell, Equinor and Ithaca, as the applicants for the consents and developers of the
projects, have an obvious private interest in their respective project going ahead.
Decision in Finch post-dates the consents
[117]
In this case the consents are challenged on the basis of a decision of the Supreme
Court which post-dates the consents. The decisions on the Jackdaw consent were made in
May/June 2022 and Rosebank in June/September 2023. The judgment of the Supreme Court
40
in Finch was delivered in June 2024. Counsel for Equinor submitted that it would be unjust
to reduce consents determined many months before the Supreme Court judgment.
[118]
The Supreme Court judgment states the correct interpretation of the 2020
Regulations. The law as stated by the Supreme Court in Finch also applies to decisions
which were dated prior to the Finch judgment. An example this can be found in the English
High Court case of Friends of the Earth v Secretary of State for Levelling Up Housing and
Communities. That was a challenge to a planning decision on the ground of failure to assess
downstream emissions. The decision was dated 7 December 2022, which was after the
Supreme Court granted leave to appeal in Finch but before it had heard argument in Finch.
The case was stayed pending the judgment of the Supreme Court in Finch and heard after
that judgment was issued. The court applied the law as set out in Finch and quashed the
decision.
[119]
Accordingly, the mere fact that the Supreme Court judgment post-dates the decisions
for Jackdaw and Rosebank does not of itself justify refusal of reduction. However, in
considering all the circumstances of the case, consideration has to be given as to what the
parties did in the period between the decision and the judgment, and thereafter, and it is to
that which we now turn.
Conduct of the parties
[120]
The conduct of parties during the period between the time of a decision and the time
of a resolution of a judicial review of that decision may have a bearing on the exercise of the
equitable discretion to refuse reduction. If a petitioner delays in bringing a judicial review,
or delays in progressing it, or does not seek interim remedies, and so allows the decision
maker and third parties to proceed for a significant period of time on the basis that the
41
decision is lawful, then there may be situations in which it is equitable for the decision to
stand and reduction be refused. If on the other hand it is the respondent or a third party
who has caused a situation whereby a significant period of time has passed before the final
resolution of the judicial review by the court, then it may be equitable to reduce the decision
notwithstanding that it has been relied on in the meantime. If the delay is caused by none of
the petitioner, respondent nor third party, then reliance on the decision in the meantime
may be neutral in respect of remedies. All of this very much depends on the particular facts
and circumstances of the case.
[121]
Each of Greenpeace, Uplift, Shell, Equinor and Ithaca knew or ought to have known
at the time that the consents were granted that the law was uncertain. While it was true that
by then the decision of the Inner House in Greenpeace v Advocate General had become final as
leave to appeal to the Supreme Court had been refused, that had not given certainty to the
law at the time at which the consents were granted. The Court of Appeal had given its split
decision on 17 February 2022, which was prior to the grant of the Jackdaw consent on 1 June
2022. The Supreme Court had heard argument in Finch on 21 and 22 June 2023, which was
prior to the grant of the Rosebank consent on 27 September 2023. What Lord Devlin said
extra-judicially about uncertainty is even more apposite where the rumblings take the form
of a split decision in the Court of Appeal, or take the form of arguments which have already
been made in the Supreme Court and upon which the judgment of the Supreme Court is
awaited:
"A judge-made change in the law rarely comes out of a blue sky. Rumblings from
Olympus in the form of obiter dicta will give warning of unsettled weather. Unsettled
weather is itself of course bound to cause uncertainty, but inevitably it precedes the
solution of every difficult question of law"
(Judges and Lawmakers (1976) 39 Modern Law Review 1, 10.)
42
Conduct of the petitioners
[122]
Greenpeace and Uplift each brought their judicial reviews within the 3 month time
limit. At their instance, the judicial reviews were then sisted to await the Supreme Court
judgment in Finch. The petitioners cannot be criticised for the sist. In view of the
uncertainty as to the law at that time it would not have been appropriate for this court to
have heard and disposed of the judicial reviews prior to the Supreme Court judgment. Nor
can they be criticised for not seeking interim remedies at the outset. The law was uncertain
until it was clarified by the Supreme Court. Until then, interim remedies were very unlikely
to be granted as the court was bound by the Inner House decision in Greenpeace v Advocate
General. Further, interim interdict is granted periculo petentis: a party who obtains interim
interdict but ultimately loses the case is liable in damages for loss suffered by the interdicted
party (Fife v Orr (1895) 23 R 8). Had the petitioners obtained interim interdict, and the
Supreme Court had come to the same decision as the Inner House and the majority in the
Court of Appeal, then the damages due by the petitioners in respect of the loss suffered by
the Shell, Equinor and Ithaca for not being able to proceed with the Jackdaw and Rosebank
projects in in the meantime would have been very substantial. Upon the Supreme Court
decision being issued, Greenpeace sought interim suspension and interdict in both of their
petitions. The motions for interim orders called at the By Order case management hearing
on 30 August 2024 at which the court indicated that the interim orders sought raised
complex engineering and health and safety issues and a hearing on interim orders may be a
distraction from preparation for the November substantive hearing and may necessitate a
delay in that hearing. The motions were continued to a hearing on 25 September but were
not proceeded with as parties instead focussed on the November substantive hearing. There
is nothing in the conduct of the petitioners which would justify refusal of reduction.
43
Conduct of Shell, Equinor and Ithaca in commencing and proceeding with the projects
[123]
Regulation 4 of the 2020 Regulations provides:
"4.-- Requirement for Consent
(1)
A developer must not commence a project without the Secretary of State's
agreement to the OGA's grant of consent and the consent of the OGA."
[124]
Accordingly Shell was prohibited from commencing the Jackdaw project until 1 June
2022 and Equinor and Ithaca were prohibited from commencing the Rosebank project until
27 September 2023. Any work that they did before then, and any contracts they entered into
before then, were done or entered into at the risk that consent would be refused. While in
taking that risk they may have gained comfort from their understanding of government
policy or legislation, or from any meetings they had with government ministers, or from any
feedback given on draft applications, they were not entitled to assume that consents would
be granted. None of these matters fettered the discretion of the Secretary of State and the
OGA in considering the merits of the final application and coming to a decision on it.
[125]
All works done and contracts entered into by Shell, Equinor and Ithaca after the
grant of their respective consents were done or entered into at the risk that the Supreme
Court might find that downstream emissions required to be taken into account. In
proceeding with the projects from the date of the OGA consent, Shell, Equinor and Ithaca
took the risk that there might be a successful judicial review and the consents might be
reduced.
[126]
A third party such as Shell, Equinor or Ithaca cannot proceed with certainty that a
decision is lawful and will not be reduced unless and until the 3 month time limit for
bringing judicial review proceedings has expired without proceedings having been brought
(Odubajo v SSHD para [95] above). Here judicial reviews were commenced within that
44
time-limit. Once the respective judicial reviews were underway, Shell, Equinor and Ithaca
could not proceed with any certainty that the decision was lawful or would not be reduced:
the questions of lawfulness and the remedy would be determined by this court.
[127]
After the proceedings were commenced, none of Shell, Equinor or Ithaca sought to
progress the judicial reviews urgently. Shell and Equinor did not oppose the sists, and
Ithaca did not enter the process to oppose the sists. The developers cannot be criticised for
that: as indicated above (para [122]) it would not have been appropriate for the sist to be
recalled until the Supreme Court decision was available.
Emails from OPRED to the developers
[128]
The Offshore Petroleum Regulator for Environment and Decommissioning
("OPRED") is part of the Department of Energy Security and Net Zero and for present
purposes is the Secretary of State. In an email of 1 June 2022 to Equinor, OPRED stated that
downstream emissions need not be considered, and referred to the Court of Appeal decision
in Finch without acknowledging that the court was split.
[129]
Counsel for Equinor did not go so far as advancing an argument that the email
constituted a representation which gave Equinor a legitimate expectation that downstream
emissions would not be taken into account. He submitted that as Equinor was specifically
told not to include downstream emissions in the Environmental Statement, Equinor could
not be criticised for not addressing this issue and it would be contrary to the interests of
justice for Equinor to be required to address this matter years after the submission of the
Environmental Statement.
[130]
In my view, the email and Equinor's conduct in the light of it, is not, in all the
circumstances of this case, a bar to reduction of the consents. Equinor knew or ought to
45
have known that the law was uncertain. Accordingly, in deciding to proceed with the
project without waiting for the law to be clarified by the Supreme Court, Equinor was not
entitled to rely on the email as being an accurate statement of the law.
[131]
A similar situation arises in relation to the Jackdaw project. In an email of 12 October
2021 to Shell, OPRED stated that downstream emissions are not taken into account when
making an assessment of the significant effects on the environment of the project. Counsel
for Shell submitted on the basis of that email that Shell was not at fault in omitting an
assessment of downstream emissions from its Environmental Statement.
[132]
Although the email was an accurate statement of the law as it was understood at the
time it was written, by the time Shell's Environmental Statement was put out for public
consultation on 18 March 2022 the situation had changed: the Court of Appeal's split
decision in Finch had been issued and Shell knew or ought to have known that the law was
uncertain. In deciding to proceed with the project after consent was granted on 1 June 2022
without waiting for the law to be clarified by the Supreme Court, Shell was not entitled to
rely on the email as being an accurate statement of the law.
[133]
In all the circumstances of the case, the emails of 1 June 2022 and 12 October 2021 do
not justify withholding the normal remedy of reduction.
Conduct of Equinor and Ithaca in relation to their obligations under the Rosebank Field Development
Plan
[134]
An explanation was advanced on behalf of Equinor and Ithaca as to why they had
proceeded with the works despite the petitions for judicial review. Counsel submitted that,
as licensees of the Rosebank field, they were obliged to carry out the development in
46
accordance with the Rosebank Field Development Plan and had no alternative but to
proceed.
[135]
If a licensee fails to comply with a term of the licence, the OGA may take
enforcement action against them, which may include a financial penalty (Energy Act 2016
section 42). The licence for the Rosebank field included the model clauses set out in
Schedule 10 of the Petroleum (Current Model Clauses) Order 1999. In terms of the model
clauses, the licensee must prepare and submit a programme of works to the Minister (in this
context the OGA) for approval (Clause 17(2)) and must carry out the programme except in
so far as authorised by the Minister (ie OGA) to do otherwise (Clause 17(8)).
[136]
I do not accept that Equinor and Ithaca had no alternative but to proceed with the
works in accordance with its original Field Development Plan. Equinor could have gone to
the OGA and asked for the plan to be varied in the light of the bringing of the judicial
review proceedings and the uncertainty (pending the Supreme Court decision in Finch) as to
whether the consents were lawful. Counsel for the OGA confirmed that if there is a
reasonable explanation for any delay the OGA can amend the dates in the plan. As Equinor
and Ithaca could have sought to have the dates in the original Field Development Plan
varied to postpone the obligations to carry out the works until after resolution of these
judicial reviews, but chose not to do so, it is not equitable to allow them to found on their
obligations in the unvaried plan in order to prevent reduction of the consents.
Conclusion on conduct
[137]
In summary then, the period of delay between the granting of the consents and the
issuing of the Supreme Court judgment was not the fault of the petitioners nor the
developers. However, in proceeding with the projects during that period, rather than
47
waiting until the law was made certain, the developers took the risk that they were
proceeding on the basis of an unlawful consent. The commercial decision to take that risk,
rather than take the alternative option of not proceeding with the project in the meantime,
was one for the developers to make, but it does not justify departing from the normal
remedy of reduction.
Timing of re-consideration
[138]
Where a decision of a public authority is reduced in a judicial review, normally the
authority is able to proceed immediately to make the decision afresh on a lawful basis.
However, in the current case the re-consideration cannot take place for some time.
[139]
The 2020 Regulations provide for a procedure whereby the Secretary of State may,
before coming to a decision, require a developer to provide further information and for the
public to be consulted on the information provided (Regulation 12). If the court orders
reduction in this case, the Secretary of State proposes to follow that procedure in respect of
downstream emissions, and to require the developers to provide further information about
downstream emissions and then consult with the public on that information.
[140]
However, at this stage the Secretary of State is not in a position to specify what
further information about downstream emissions the developers should provide.
[141]
The UK government is consulting on draft supplementary Environmental Impact
Assessment guidance in the light of Finch:
"to provide clarity on Environmental Impact Assessment expectations when
assessing the effects of scope 3 emissions on climate from proposed offshore oil and
gas projects seeking development and production consent" (Environmental Impact
Assessment (EIA) Assessing effects of scope 3 emissions on climate Consultation on draft
supplementary guidance for assessing the effects of scope 3 emissions on climate from offshore
oil and gas projects October 2024 p3)
48
[142]
The consultation was issued on 30 October 2024 with a response date of 8 January
2025. Until the supplementary EIA guidance has been issued, EIA decisions will be deferred
(Consultation p3). In a statement dated 29 August 2024 OPRED said:
"It would not be appropriate to continue to assess environmental statements affected
by the [Finch] judgment while new EIA guidance is being prepared. Doing so could
lead to operators wasting time and money submitting environmental statements that
do not contain the required elements. We are therefore deferring the assessment of
any environmental statements we receive relating to oil and gas extraction and
storage activities until the new guidance is in place."
The Government's intention is to publish finalised supplementary Environmental Impact
Assessment guidance in spring 2025 alongside the government response to the consultation:
"Publication of the supplementary EIA guidance will mark an end of the deferral of
EIA decisions and allow the EIA process to function as normal for offshore oil and
gas development and production projects" (Consultation p4)
[143]
It is clear from the affidavits of Dr Parr and Ms Appleyard that there is no consensus
on how downstream emissions should be calculated. It is in the interests of good
administration that the government gives proper consideration to what will be required in
assessing downstream emissions, and in so doing has the benefit of the results of public
consultation.
[144]
As there is good reason for the delay in re-consideration, and taking into account all
the circumstances of the case, the delay in re-consideration does not justify refusal of the
normal remedy of reduction.
Consequences for public and private interests if the Jackdaw and Rosebank projects do not
go ahead
[145]
Counsel for Shell submitted that if consent were to be reduced, the viability of the
Jackdaw project as a whole would be threatened, which in turn would impact the UKs
49
security of supply and the energy transition, jobs, the local and national economy and the
commercial interests of Shell and the other companies with which it was working. There
was a public interest in completion of the projects. Similar arguments were made by counsel
for Equinor, who focussed on reduced energy in the midst of a European energy crisis, loss
of tax income and job losses. Counsel for Ithaca made a similar argument and also referred
to the substitutability of oil and gas from abroad to meet continuing UK demand, and the
principal objective under section 9A of the Petroleum Act 1988 of maximising the economic
recovery of UK petroleum.
[146]
These arguments as to the public and private interests in completion of the projects
go to the substance of whether or not the development of, and extraction of oil and gas from,
the Jackdaw and Rosebank fields should go ahead.
[147]
However, the question for me is not whether the projects should go ahead, but
whether the unlawful decisions should be retaken in a lawful manner. If the consents are
granted on re-consideration, the concerns underlying these arguments will fall away. If the
consents are not granted on re-consideration, then that will be because the new decisions
have been taken lawfully having taken into account all relevant factors and concerns,
including the effect of downstream omissions. The potential consequences of a possible
refusal of consent at the re-consideration stage do not justify the court preventing the re-
consideration from taking place.
Public interest in inward investment to the UK
[148]
Counsel for Ithaca also raised the issue of inward investment to the UK. He
submitted that investors in the UK look for stability, predictability and certainty, and that to
reduce the consents would be the antithesis of that. However, inward investors are not
50
entitled to certainty that an unlawful decision will be given effect to. All that they are
entitled to certainty about is that decisions will be taken in accordance with the law, and that
the legal system will act impartially in ensuring that the law is upheld.
Power of the Secretary of State to re-consider
[149]
The Secretary of State has raised concerns as to whether the Secretary of State has the
power to agree to the grant of consent for a project while the original decision on whether to
agree to the grant for consent remains in force due to suspension of the reduction. Counsel
for the Advocate General submits that the Secretary of State does not have that power:
having made his decision to agree he is functus. He submits that there is no statutory power
to revoke his decision, and that there was no implied power
(a)
under Regulation 14 (Interpretation Act 1978 section 12(1), (R (Piffs Elm Ltd) v
Commission for Local Authority Administration in England [2024] KB 107 at 97 - 101)
(b)
under the purpose of the legislation (R (Ball) v Hinckley & Bosworth Borough
or
(c)
as an ancillary power (R (Gleeson Developments Ltd) v Secretary of State for
[150]
In my opinion the answer to the Secretary of State's concerns lies in the wide
equitable powers of this court to provide an appropriate remedy in a judicial review,
including the power under Rule 58.13(2) to impose conditions. The source of the Secretary
of State's power to re-consider his decision would be the order made by this court and the
2020 Regulations.
51
Conclusion on whether the appropriate remedy is reduction or declarator
[151]
Having considered all the circumstances of the case and the various public and
private interests, I have reached the conclusion that 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.
[152]
The decisions will be reduced, and can be taken again, this time taking into account
downstream emissions.
Suspension of reduction
[153]
In Greenpeace v Advocate General the question of remedy for failure to consider
downstream emissions did not arise because the Inner House, giving its judgment prior to
the Supreme Court judgment in Finch, found that downstream emissions need not have
been taken into account. Nevertheless the court did consider what remedy it would have
granted had it decided otherwise, and, having indicated that the court would have found it
difficult to refuse reduction (see para [115] above), the Lord President went on to consider
suspension of reduction:
"[70] However, in a situation in which the appellants did not take steps to obtain
an interim order and delayed bringing proceedings, despite their knowledge of the
project going ahead, the court may have required to consider whether to suspend the
operation of any decision to quash the consent until such time as the Secretary of
State had been afforded an opportunity to reconsider his agreement to the consent in
the light of any representations made. Since the matter does not arise for decision,
the court will reserve its view on the precise terms, or competence, of any such order
(cf. Walton, Lord Carnwath at p 102 (p.1231) paras 142145)."
52
[154]
The concerns of the Lord President as to the competency of suspension in relation to
a statutory appeal under the 1999 Regulations do not arise in the current petitions. The wide
powers of the court to provide an appropriate remedy in a judicial review extend to
suspension of any reduction.
[155]
An example of a judicial review in which reduction was suspended (by means of a
stay) in order to allow reconsideration to take place is the English Court of Appeal decision
in R (Rockware Glass) v Chester CC in which Buxton LJ said:
"I am satisfied that in general terms it would be wrong and disproportionate for the
quashing order to take effect so as to require the closure of the plant during the short
period before Chester determine the fresh application for a permit. The law is
sufficiently upheld by the judgment of this court, the declarations made by the judge
which we are upholding, and the fact that the existing permit will be quashed as
soon as a decision is taken by Chester on whether and on what terms to grant the
new permit." (paragraph 71)
[156]
In my opinion a similar course should be taken here.
[157]
It would be wrong and disproportionate for the reduction to take effect immediately
so as to require work on the projects to cease during the period before the re-consideration.
These are complex engineering projects which depend on the co-ordination of many factors,
including availability of vessels, the manufacturing capacity of contractors, the availability
of staff, a complex contractual structure with suppliers and, not least, the limited times of
the year when weather conditions allow works to progress in a hostile off-shore
environment. If the reduction were to take effect immediately but then, on re-consideration,
the consents were granted, then there would have been significant disruption to the projects,
at considerable cost both in monetary terms and jobs, and reinstating the necessary
co-ordination may be difficult as vessels may have been redeployed or suppliers or
employees may have taken other work.
53
[158]
The effect of suspension is that Shell, Equinor and Ithaca are given options as to how
to proceed pending the re-consideration. They may, if they wish, continue with the projects.
They may, if they wish, make the projects safe but take no further action until they have the
result of the re-consideration: that would mean that, if on re-consideration the consents are
refused, they would not have expended resources and efforts on progressing the projects
between now and the date of refusal.
[159]
The decision as to which option to take will be a commercial decision for Shell,
Equinor and Ithaca to take, taking into account the commercial risks involved, including the
risk as to whether or not the consents will be granted on re-consideration.
[160]
However, while it is equitable to suspend the reduction in order to provide practical
options as to how to deal with the practical issues of construction and engineering prior to
re-consideration, it is not equitable to allow the production of oil and gas prior to then. The
re-consideration will take into account what the emissions will be if oil and gas is extracted.
A fundamental purpose of the Directive and 2020 Regulations is that activities giving rise to
emissions must not begin until the emissions are assessed (see para [28] above). To allow
extraction to take place prior to re-consideration would frustrate that purpose. Concerns
about the effect of emissions from the oil and gas extracted do not extend to the preparatory
engineering and construction works, and so it is appropriate to allow such works to proceed
in the period before re-consideration. It will be a condition of the suspension of the
reductions that no oil or gas may be extracted from the Jackdaw or Rosebank field until the
OGA has granted a consent for that field.
[161]
In reaching this decision to suspend the reduction, I am conscious that the period
which will elapse between the reduction and re-consideration will be considerably longer
than the short period in Rockware Glass. However, there are good reasons for the length of
54
time required. The proper assessment of the effect of downstream emissions is crucial to the
lawfulness of the re-consideration. The Secretary of State is currently engaged in an exercise
of determining how that assessment should properly be made and by a consultation has
sought the input of the public, including the petitioners and Shell, Equinor and Ithaca (see
paras [141-142] above). 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. The court will not interfere with the
consultation process already underway by which the government will come to a view on the
requirements for assessing downstream emissions, and Equinor's motion to ordain the
respondents to confirm: (i) what information is required by each respondent to make a new
decision, and (ii) the timescale for new decisions to be taken, is refused.
[162]
Nevertheless, the court expects the Secretary of State and the OGA to proceed
towards re-consideration as soon as possible after the consultation period has elapsed so
that consent is granted or refused as soon as possible. Indeed, under Regulation 14 of the
2020 Regulations the Secretary of State is under an obligation to make his decision as to
whether or not to agree to the grant of consent within a reasonable period from the date he
is provided with the relevant information, taking into account the nature and complexity of
the project. Similarly, the OGA is required to make its decision whether to grant consent
within a reasonable time from the Secretary of State's decision (Regulation 15(2)). The
Secretary of State has stated that the deferral of EIAs will come to an end in spring 2025 with
the publication of the new guidance and the EIA process will then function as normal (see
para [142] above). The court expects the re-consideration to take place as soon as possible in
accordance with that timetable.
55
Legality of works done on the projects prior to reduction
[163]
Counsel for Equinor raised the question of the legal status of works done prior to
reduction.
[164]
The effect of reduction on matters done prior to reduction is a matter of great
difficulty on which the courts in both Scotland and England have declined to express a
general view (Archid v Dundee CC at para [55]; Boddington at p 164, Majera at
paragraph 42).
[165]
In the current petitions, the answer to any concerns as to the validity of acts done
prior to reduction of the consents can be found in the wide equitable powers of this court to
provide an appropriate remedy in exercising its supervisory jurisdiction. The Court of
Session is accustomed in public law cases to the concept of making orders with only
prospective effect. Where the court decides that an Act of the Scottish Parliament is not
within legislative competence, or a member of the Scottish Government does not have the
power to make subordinate legislation, or the purported exercise of a function by a member
of the Scottish Government was outside devolved competence, the court may make an order
removing or limiting any retrospective effect of the decision (Scotland Act 1998
section 102(2)). In my view, the power of the court to provide an appropriate remedy in
exercising its supervisory jurisdiction extends to limiting or removing any retrospective
effect of reduction.
[166]
In this case, due to the timing of the Supreme Court decision in Finch, and the timing
of the re-consideration, a considerable amount of time will have elapsed between the
consents and the reduction. In the meantime Shell, Equinor and Ithaca have commenced the
projects in terms of the consents and complex engineering works are part completed. In
56
order to avoid any doubt about the legality of works done between the granting of consents
and reduction, the retrospective effect of the reduction will be removed. The reduction will
have prospective effect from the date when it ceases to be suspended. The reduction will
not apply to works done during the period of suspension.
Conclusion
[167]
In the Greenpeace Jackdaw and Rosebank Petitions I shall sustain the petitioner's
first and second pleas-in-law. In the Uplift Rosebank Petition, I shall sustain the petitioner's
first and eighth pleas in law.
[168]
In each of the three petitions I shall order as follows.
(1)
Reduction of the Secretary of State's decision to agree to the granting of
consent by the OGA.
(2)
Reduction of the grant of consent by the OGA.
(3)
Both of these reductions will be subject to the following conditions:
(a)
the effect of the reductions is suspended until the date on which the
OGA makes a new decision under the 2020 Regulations as to whether or not
to grant consent for the project;
(b)
during the period of suspension
i.
the Secretary of State shall have the power to make a decision,
under the 2020 Regulations, as to whether or not to agree to the grant
of consent by the OGA for the project;
ii.
the OGA shall have the power to make a decision, under the
2020 Regulations, as to whether or not to grant consent for the project;
57
iii.
the Secretary of State and the OGA may take steps under the
2020 Regulations in order to make such decisions.
(c)
during the period of suspension no oil or gas may be extracted from
the relevant field;
(d)
the reductions will be prospective from the date at which the period of
suspension ends.
(4)
I reserve all questions of expenses in each of the three petitions in the
meantime.
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