Introduction

It was hailed as a victory by environmental groups Greenpeace and Uplift when the Court of Session granted permission to challenge the Rosebank and Jackdaw oil and gas developments in October 2024.

Does Lord Ericht's judgment in the case (issued this week) merit such celebrations for the groups?

Background

This Scottish litigation follows a series of actions in the past three years in England, where the UK government has faced judicial criticism over an decarbonisation plan (e.g. Friends of Earth, ClientEarth and Good Law Project). Most recently, in June 2024, the UK Supreme Court wrestled with the issue. The case (Finch v. Surrey County Council) concerned an onshore oil project in Surrey, where planning permission was granted without considering emissions from the eventual burning of its oil. In that case, the UK Supreme Court held that downstream emissions should have been included in the project's environmental impact assessment. The failure to do so made Surrey County Council's decision to grant planning permission flawed.

The three petitions concerned two oil and gas projects in the North Sea and North Atlantic – Rosebank and Jackdaw. Rosebank is estimated to be the largest undeveloped oil and gas field in the UK continental shelf. The field will produce in excess of 1 million standard cubic feet of natural gas per day, equivalent to the daily usage of Aberdeen. At its peak, Jackdaw is expected to produce around 6.5% of the UK's gas production.

Greenpeace and Uplift sought to challenge: (i) the Secretary of State's approval for the development and production of the oil and gas fields; and (ii) the Oil and Gas Authority's (OGA) consent for the same.

Following on from Finch, it was accepted by all parties that both decisions were unlawful. As had been the case in Finch, the environmental impact assessments failed to account for the consequences of downstream emissions – specifically, the climate effects stemming from the combustion of the oil and gas to be extracted.

That being the case, the central issue was, therefore, whether the decisions should either be reduced, reconsidered in accordance with the law, or allowed to proceed notwithstanding their unlawful nature.

Decision

Lord Ericht opined that decisions should be reduced and taken again – this time, taking the effect of downstream emissions into account. Reduction will be suspended until the fresh decision is reached. No oil or gas can be extracted from the sites during the suspension period.

His opinion states: "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."

Takeaways

This is plainly not the end of the story. We now must wait for the decision process to be re-run and a lawful decision made. Unless and until the decision is to refuse the applications (which will inevitably trigger further litigation at the insistence of the respondents), the environmental groups cannot consider this a complete success. Time will tell in that regard. What is clear – as is an emerging pattern south of the border – is that the Scottish judiciary will not bend over for oil and gas companies at all costs, instead preferring a more neutral role.