Malcolm Gunnyeon: Climate change litigation risk – the rise in activist challenges

Malcolm Gunnyeon: Climate change litigation risk – the rise in activist challenges

Malcolm Gunnyeon

Greenpeace has failed in its challenge to the grant of consent to drill at BP’s Vorlich field, East of Aberdeen. The decision of the Inner House of the Court of Session earlier this month is the latest in a rapidly growing series of activist challenges to the approvals or permits for oil and gas, major infrastructure and other carbon-intensive projects, writes Malcolm Gunnyeon.

The intriguing point to note is that the challenges to date, which have been brought by way of judicial review, have mainly failed. Yet they show no signs of slowing. Litigation success is not the only objective when activist groups commence judicial review proceedings. Delay, disruption, increased costs and public debate usually follow, even where the challenge is unsuccessful.

The Greenpeace case

Greenpeace’s challenge to the consent granted by Secretary of State for Business, Energy and Industrial Strategy and the Oil and Gas Authority to drill at Vorlich relied on both procedural and substantive arguments. The procedural challenges to the consultation process were rejected as being technical and immaterial.

The substantive challenge was particularly interesting. To date, challenges to project authorisations have typically been framed in terms of whether the decision-maker has taken sufficient account of the UK’s climate change commitments. The specific question for the court in the Greenpeace challenge was whether the environmental impact of consumption of the extracted and refined oil and gas by the end user was a relevant consideration.

The environmental impact assessment in respect of the project required the direct and indirect significant effects of the project on the climate to be assessed. The court found that “it is the effect of the project, and its operation, that is to be considered and not that of the consumption of any retailed product ultimately emerging as a result of a refinement of the raw material”. Responsibility for the transition to a low carbon society lay with the UK government and was a political matter, rather than a legal question to be determined in relation to a particular project.

This conclusion is in line with an earlier ruling from the High Court in England in February last year, in which Greenpeace was refused permission to challenge the consent to drill at Vorlich on the ground that the Secretary of State had failed to take account of a relevant consideration, being the effect of the consumption of the oil on the UK’s carbon budget and its contribution to climate change.

The increase in activism

This type of activism is clearly on the rise and shows no sign of slowing. Another prominent example is the litigation over the intended expansion of Heathrow Airport. Last year, the Court of Appeal upheld Friends of the Earth’s challenge to the plans, concluding that the proposed extension was unlawful because ministers did not adequately take into account the government’s commitments to tackle the climate crisis in the Paris Agreement in its Airports National Policy Statement. The Supreme Court overturned this conclusion in December. However, the battle over Heathrow expansion is far from over. As the Supreme Court pointed out, when development consent is applied for to construct the runway, it will be necessary to demonstrate, at that stage, that the development will be compatible with the up-to-date (and stricter) climate commitments.

Other examples include Client Earth’s challenge to the Secretary of State’s decision to grant development consent for the construction of two new gas-fired generating units at Drax Power Station and the Good Law Project’s challenge to the Energy National Policy Statements. Transport Action Network has also recently failed in a challenge to the UK government’s Second Road Investment Strategy, although the government has pledged to review its national network policy to take account of net-zero commitments.

Looking forward, we anticipate an increase in recourse to human rights grounds in judicial review challenges. In May, Plan B Earth and three young people filed a petition for judicial review against the Prime Minister, alleging that UK government support for coal projects, aviation, oil and gas, and roads investment is contrary to the UK’s climate change commitments and violates rights to life, private and family life and protection from discrimination (guaranteed by Articles 2, 8 and 14 of the European Convention on Human Rights, as implemented into UK law by the Human Rights Act 1998).

It is fascinating to track the arguments deployed by activist litigants in challenging project authorisations by way of judicial review. We are seeing rapid growth in such challenges, even in the absence of significant success. Successful challenges may yet follow, particularly as human rights arguments are explored by the court in the coming years.

Malcolm Gunnyeon: Climate change litigation risk – the rise in activist challenges

Malcolm Gunnyeon is a partner at Dentons

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