Greenpeace and Uplift v SoS for Energy Security and Net Zero
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 19 October 2023 |
| Neutral Citation | [2023] EWHC 2608 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4583/2022 and CO/4830/2022 |
and
[2023] EWHC 2608 (Admin)
THE HON. Mr Justice Holgate
Case No: CO/4583/2022 and CO/4830/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
James McClelland KC, Gethin Thomas and Alastair Richardson (instructed by Greenpeace) for the Claimant in CO/4583/2022
Estelle Dehon KC and Ruchi Parekh (instructed by Leigh Day Solicitors) for the Claimant in CO/4830/2022
Richard Turney and Ben Fullbrook (instructed by The Government Legal Department) for the Defendant
The Oil and Gas Authority did not appear and was not represented at the hearing
Hearing dates: 25 and 26 July 2023
FINAL JUDGMENT
Introduction
These two claims for judicial review are concerned primarily with decisions taken by the Secretary of State for Business, Energy and Industrial Strategy (now the Secretary of State for Energy Security and Net Zero) in connection with the licensing by the Oil and Gas Authority (“the OGA”) of further offshore oil and gas exploration and production, in particular the 33 rd licensing round. A central issue is whether the Secretary of State acted unlawfully by not including in his assessment of the Plan downstream emissions of greenhouse gases (“GHGs”) from the end use by consumers of oil and gas as a fuel. These are also referred to as “scope 3” emissions. The decisions of the Secretary of State under challenge were taken before the current incumbent was appointed on 31 August 2023. The OGA is a defendant in CO/4583/2022 and an interested party in CO/4830/2022.
The Secretary of State's policy for further licensing was contained in his non-statutory Offshore Energy Plan (“the Plan”). By the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004 No. 1633) (“the 2004 Regulations”) he was required to carry out a strategic environmental assessment (“SEA”) of the Plan. The assessment was referred to as OESEA4.
Greenpeace Limited (“Greenpeace”), the claimant in CO/4583/2022, is the UK branch of Greenpeace, a non-governmental organisation whose principal activity is to campaign to prevent harm to the environment. It has about 1.2m members in the UK. The international organisation operates in 40 countries and has about 2.8m supporters worldwide. The claimant has a long history of campaigning on the impact of, and taking action to prevent, oil and gas exploration, extraction and consumption, and impacts on climate change.
Uplift, the claimant in CO/4830/2022 is an unincorporated organisation. Its “mission” is to support “the movement for a just and fossil-free UK”. It seeks “a just transition away from fossil fuel production that is commensurate with the scale of the climate crisis”. Uplift has 17 members of staff who include campaigners, researchers and policy analysts and is supported by a steering group of external consultants with particular expertise in this area.
By s.1(1) of the Continental Shelf Act 1964 and s.2 of the Petroleum Act 1998 (“PA 1998”) the rights to search and bore for and get petroleum in the territorial sea adjacent to the UK 1 and in the UK continental shelf are vested in the Crown. By s.3 of the PA 1998 the OGA may grant licences on behalf of the Crown to search and bore for and get such petroleum. Up until 1 October 2016 licensing functions were discharged by the Secretary of State, but on that date they were transferred to the OGA. The OGA is a company wholly owned by the Secretary of State, but s.1 of the Energy Act 2016 provides that it is not to be regarded as acting on behalf of the Crown. On 21 March 2022 the OGA adopted “North Sea Transition Authority” as a trading name.
The Offshore Petroleum Regulator for Environment and Decommissioning (“OPRED”) is a unit within the Department for Energy Security and Net Zero responsible for regulating environmental and decommissioning activity in the territorial sea adjacent to the UK and on the UK continental shelf. This includes managing the SEAs for the Secretary of State's plans for offshore energy projects in accordance with the 2004 Regulations.
The Department's Oil and Gas Exploration and Production unit (“OGEP”) was responsible for developing the Climate Compatibility Checkpoint (“the Checkpoint”) which is the subject of certain of the grounds of challenge.
There have been 32 licensing rounds between 1964 and 2020. UK waters are divided into “blocks”. A licence is granted in respect of one or more blocks or part-blocks. In each licensing round the OGA invites competitive bids for the blocks on offer and selects the winning bid for each licence area. A “seaward production licence” grants exclusive rights to the licensee to search and bore for and get petroleum in the licensed area, subject to terms based on statutory “model clauses”. Thus, after the exploration phase the licence holder must obtain the consent of the OGA before developing infrastructure or extracting oil or gas commercially. That consent is subject to the agreement of the Secretary of State, which may not be given unless and until any necessary environmental impact assessment (“EIA”) is completed.
Following the 21 st Conference of the parties to the United Nations Framework Convention on Climate Change (“UNFCCC”), the text of the Paris Agreement on Climate Change (“the Paris Agreement”) was agreed and adopted on 12 December 2015. The UK ratified the Agreement on 17 November 2016. Article 2(1) seeks to strengthen the global response to climate change by holding the increase in global average temperature to well below 2°C above pre-industrial levels, and by pursuing efforts to limit that increase to 1.5°C.
In order to achieve the long term temperature goal in Art.2(1), Art.4(1) lays down the objective of “achieving” a balance between “anthropogenic emissions by sources” and “removals by sinks of greenhouse gases” in the second half of this century. This objective to achieve net zero emissions will be satisfied if the global level of any residual GHG emissions (following measures to reduce such emissions) is at least balanced by sinks, such as forests, which remove carbon from the atmosphere.
Article 4(2) of the Paris Agreement requires each party to notify to the UNFCCC and maintain successive nationally determined contributions (“NDCs”) that it intends to achieve. The parties are then to pursue domestic measures “with the aim of achieving the objectives of such contributions”. On 12 December 2020 the UK notified its NDC to reduce by 2030 national GHG emissions by at least 68% compared to 1990 levels.
Further in response to the Paris Agreement, s.1 of the Climate Change Act 2008 (“CCA 2008”) was amended with effect from 27 June 2019 so that the Secretary of State is under a duty to ensure that “the net UK carbon account” for 2050 is at least 100% lower than the baseline in 1990 for carbon dioxide and other GHGs. This was in substitution for the 80% reduction originally enacted (see the Climate Change Act 2008) (2050 Target Amendment) Order 2019 (SI 2019 No.1056). This is the UK's net zero target.
One of the issues which divides those in favour of or against the grant of further licences for oil and gas exploration and production is whether that would be compatible with achieving the net zero target. The court was referred to some of the literature on the subject but plainly this is a matter of judgment and not law.
In May 2021 the International Energy Agency (“IEA”) produced a report, “Net Zero by 2050: A roadmap for the Global Energy Sector”. They advised that there is no need for investment in new fossil fuel supply in their net zero pathway to 2050. But at the same time the report recognises that energy security is an important consideration for governments and those they serve. The reduced demand for oil and gas, and the increased diversity of energy sources, may reduce some issues, but those risks do not disappear. So, for example, the IEA predicts that oil and gas supplies will become increasingly concentrated in a small number of producers. OPEC's share of oil supply is projected to grow from 37% in recent years to 52% in 2050, the highest level in the history of oil markets (p.175).
On 20 October 2021 the United Nations Environment Programme (“UNEP”) produced a report on “The Production Gap.” It said that, viewed globally, governments plan to produce more than twice the amount of fossil fuels in 2030 than would be consistent with limiting global warming to 1.5°C.
Plainly these and other related issues are matters for individual governments to address. The scale of oil and gas production, domestic consumption, importation and energy security issues will vary from country to country. Their relative contributions to global GHG emissions also vary. The UK is said to contribute less than 1% of the global total.
From 1999 UK oil and gas production has been in decline. Current OGA projections show future UK production falling by up to 8% a year, even when new development and new licensing is taken into account (para.11 of submission to Secretary of State dated 7 September 2022). The Climate Change Committee (“CCC”) has produced a “balanced net zero pathway” to 2050 which incorporates the declining, but continued UK demand for oil and gas over that period. OGA's projection of domestic supply to 2050 is substantially lower than that of demand throughout the period. The UK is therefore expected to remain a net importer of oil and gas. Officials also informed the Secretary of State that “even with continued...
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High Court Rejects Climate Change Based Challenge To Oil And Gas Licensing
...courts: R. (on the application of Greenpeace Limited) v Secretary of State for Energy Security and Net Zero, Oil and Gas Authority [2023] EWHC 2608 (Admin). Key Whether the grant of further licences for oil and gas exploration and production is compatible with achieving the net zero target ......