Greenpeace success over Government failure to publicise oil and gas consents

Greenpeace have won judicial review proceedings brought against the UK government's failure to publicise authorisation for oil and gas exploitation in the Vorlich offshore field.  BP and Ithaca Energy sought consent from the Oil and Gas Authority ("the OGA") for the drilling of wells and oil and gas production.  The consent was subject to Environmental Impact Assessment carried out by the Secretary of State for Business, Energy and Industrial Strategy under the Offshore Petroleum Production and Pipe-lines (Assessment of Environmental Effects) Regulations 1999.

In August 2018 the Secretary of State agreed to the issue of the OGA consent, which the OGA then issued in September that year. A challenge to these approvals can be made by an application under regulation 16 of the 1999 Regulations, but only within a six week period from the publication of details of the OGA consent in the government newspaper, the London, Edinburgh and Belfast Gazettes.

The Minister thought that he was required to publish notice of his agreement under the EIA regime, rather than the OGA consent. Due to an oversight the Ministerial agreement was not publicised until July 2019, but the OGA consent was not published in the Gazettes at all.

Bringing judicial review proceedings, Greenpeace sought an order that notice of the OGA consent be given in the Gazettes, allowing an application to be made under regulation 16.  In October 2019 in the separate case of R(Garrick-Maidment) v Secretary of State (concerning drilling in Poole Bay which might affect seahorses), the government conceded that the 1999 Regulations were defective and there was a failure to transpose the requirements of EIA Directive to publish decisions and provide access to justice.  A review of the regulations and working practices in BEIS has been instituted.

Mrs Justice Lang granted permission to apply for judicial review in the Greenpeace case at a hearing. The government has subsequently conceded the case to the extent of the failure to publicise the decision in the Gazettes.  Notice has now been given and any regulation 16 application will be made to the Court of Session.  This will then address the substantive issues raised, including publicity of the application and amended EIA material.

Richard Harwood QC acted for Greenpeace whilst Stephen Tromans QC acted for BP and Ithaca.

Press coverage includes Energy Voice and upstreamonline.