High Court dismisses challenge to Offshore Energy SEA and Oil & Gas Licensing Round

The High Court (Holgate J) has today dismissed two claims for judicial review in relation to the consenting of offshore oil and gas extraction. The Secretary of State for Energy Security and Net Zero had adopted the Offshore Energy Strategic Environmental Assessment 4 (OESEA4), which assessed the environmental effects of policies in respect of energy activities in the offshore area, including oil and gas production. OESEA4 excluded from the assessment the “end use” emissions from the combustion of oil and gas extracted pursuant to the plan. The Secretary of State had also designed and applied a “Climate Compatibility Checkpoint” in relation to the endorsement of the North Sea Transition Authority’s 33^rd licensing round for offshore oil and gas production.

Greenpeace and Uplift challenged these decisions alleging:

1. The Secretary of State’s decision not to assess in OESEA4 end use GHG emissions from further oil and gas licensing rounds was irrational and/or in breach of the 2004 SEA Regulations.
2. In breach of the 2004 SEA Regulations the Secretary of State failed properly to assess “reasonable alternatives”, by failing properly to assess the alternative of not proceeding with further oil and gas licensing rounds.
3. The Secretary of State unlawfully failed to publish any reasons for deciding that a new licensing round would be compatible with the Climate Compatibility Checkpoint and the UK’s climate objectives.
4. The Secretary of State’s decision to approve the design of the Checkpoint was unlawful because it excluded test 5 for reasons which were unlawful and irrational.
5. The Secretary of State acted irrationally by relying upon the Checkpoint when deciding (a) to adopt the Offshore Energy Plan and (b) that the 33rd licensing round would be compatible with the UK’s climate objectives.
6. The NSTA’s decision to launch the licensing round was unlawful because it depended on the OESEA4 and Checkpoint decisions.

Holgate J rejected each of these arguments, finding that the Secretary of State had been rationally entitled to exclude from OESEA4 an assessment of the effects of end use emissions, since they were not likely significant effects of the plan in question. The Secretary of State was also entitled to design a non-statutory Checkpoint which did not make any assessment of end use emissions, and was not required to provide any reasons for finding that the Checkpoint tests had been met in endorsing the licensing round. Accordingly, the challenge to the NSTA’s decision was also dismissed.

The judgment may be accessed here.

Richard Turney and Ben Fullbrook acted for the Secretary of State, instructed by the Government Legal Department.