In a recent high profile judicial review decision, the Scottish Court of Session has confirmed that the Jackdaw and Rosebank North Sea oil and gas projects were unlawfully consented by the Secretary of State and the North Sea Transition Authority, the UK’s oil and gas regulator (formerly the OGA). NGOs Greenpeace and Uplift argued that both the Secretary of State’s approval and the regulator’s consent failed to sufficiently assess the climate impact of these projects. 

Jackdaw and Rosebank are developments which will have a major impact on UK energy supply and security. Rosebank in particular is estimated to be the largest untapped oil and gas resource in UK waters. 

By the time of the substantive hearing, it was undisputed that the Environmental Impact Assessments (EIAs) for both projects were inadequate on the basis that the effects of downstream emissions had not been considered and the decisions to grant consent were unlawful in light of the Supreme Court’s judgment in Finch v Surrey County Council, which we covered in our article last year.

Finch established that when carrying out an EIA of a project for the extraction of oil, the authority is required to assess, as an indirect effect of the project, the greenhouse gas emissions arising from the ultimate combustion of the oil once refined and used as fuel. This decision was then followed by a key judgment in Friends of the Earth Ltd v Secretary of State for Levelling Up, Housing and Communities & Ors [2024] (see our coverage of the decision here) which quashed the planning permission decision for the Whitehaven Coal Mine. The developer, West Cumbria Mining, described the Whitehaven project as a "net zero mine" on the basis that emissions generated from the mine could be addressed through carbon offsetting. Again, the grounds of challenge rested heavily on how greenhouse gas emissions from combustion of the coal produced were assessed in addition to additional points regarding offsetting and substitution, which were ultimately rejected. 

Judgment in Jackdaw and Rosebank 

As the parties had agreed that the decisions to grant consent were unlawful, the issue for the Court was therefore what remedy should be granted in respect of the consents and what should happen to the projects in the meantime.

As with all judicial review proceedings, remedies are a matter of discretion for the Court and are fact specific. The options available in this instance were a declarator (effectively a pronouncement by the Court that the decisions were unlawful but would stand, allowing the projects to extract oil and gas to progress – argued for by the developers) or a quashing order (or, as it is known in Scotland, an order for reduction) meaning that the decision would be sent back to the Secretary of State to be made again on a lawful basis, taking into account the downstream emissions of the projects – argued for by Greenpeace and Uplift. 

Seeking a declarator, the developers of Jackdaw and Rosebank emphasised their private interests, advancing evidence to demonstrate the significant progress and investment that had been made to date on the projects. Lord Ericht was unconvinced by the developers’ private interests, concluding 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.” 

In quashing the decisions, Lord Ericht did suspend the reduction until a fresh decision on whether to grant the consents was made, in recognition of the disproportionate impact that requiring work on the projects to cease completely with immediate effect would place on the developers. However, the Court made clear that an explicit condition of the suspension was that no oil or gas could be extracted during this interim period as this would frustrate the purpose of the EIA Regulations, and any continuation of preparatory work would be at the developers’ risk.

This decision is another significant development in UK jurisprudence on climate litigation, cementing the position in Finch and demonstrating its application in decisions in Scotland.

This article was written by Georgia Hanson, Victoria Barnes and Christopher Wenn