Greenpeace loses Vorlich appeal

Greenpeace has lost its case against the UK government in relation to consent to BP drilling the Vorlich field, just off Aberdeen.

The court was not persuaded by Greenpeace’s interpretation of the 1999 Regulations and further held that the procedural and factual errors which it had identified in relation to BP’s application were not sufficiently material.

In 2018 BP applied, on behalf of themselves and Ithaca, for consent for two new production wells in the Vorlich oil field.  The Oil and Gas Authority, acting on authority from the Secretary of State, granted consent under the Offshore Petroleum Production and Pipelines (Assessment of Environmental effects) Regulations 1999 (the “1999 Regulations”).

Greenpeace challenged that decision on a number of substantive and procedural grounds:

1. Notice of the project had not been properly published under the 1999 Regulations and EU Directive 2011/92/EU, as it had not been published on a government website.
2. BP failed to properly publish the notice, as the notice was incomplete and omitted certain information.
3. BP’s published Environmental Statement contained arithmetical errors regarding the level of greenhouse gas emissions associated with the project.
4. The environmental impact of the subsequent consumption of the extracted and refined oil was a relevant factor which had not been considered.

The appeal was heard in the Inner House of the Court of Session by the Lord President, Lord Carloway, sitting with Lord Menzies and Lord Pentland.

Meaning of “public website”

The 1999 Regulations and Regulation 2011/92/EU set out certain notification requirements in relation to projects which have an impact on the environment.  Notice must be published on a “public website”, which is defined in the 1999 Regulations as “a website accessible to the public where the public can view and download information placed upon it”.

Greenpeace argued that the notice ought to have been published on a government website, which it had not.  BP had published the notice on its own website, in the Daily Telegraph and the Press and Journal, and on Scot-Ads (a website which searches for public notices). Greenpeace argued that BP had breached the Regulations and deprived them of the opportunity to engage in the consultation process.

In his opinion, Lord Carloway reinforced some key principles of statutory interpretation by explaining that “[t]he regulation and the definition must be taken, in the absence of ambiguity or absurdity, to mean what they say”.  He added that the Regulation could have stipulated that the notice must be published on a government website if that was the intention, but it had not.  Therefore BP’s method of publication had been sufficient.

Incomplete notice

BP accepted that the notice was incomplete in that is omitted the precise location of the project and the cut-off date for representations.

However, the court found that these defences were of a “minimal nature” and that anyone viewing the notice could “very easily” have ascertained the missing information from the named contact at OPRED. As the error did not appear to have prejudiced Greenpeace or the public, this ground of appeal failed.

Arithmetical errors

The Environmental Statement published by BP contained errors regarding the level of greenhouse gas emissions.  These errors had been noted by OPRED but were not published, given that they did not alter the total greenhouse gas emissions figure and were not material to the decision whether to grant consent.

Environmental impact of consumption

OPRED’s guidance states that applicants should consider “the direct and indirect significant effects of the relevant project” in their Environmental Statement.  Greenpeace submitted that the environmental impact of the ultimate consumption of the oil and gas generated from the sites ought to have been considered within the Environmental Statement, which it was not.

The court found that the assessment of the effects of the project related only to those effects associated with the construction and operational activities of the project, not the end use. The Environmental Impact Assessment process was not concerned with end use effects, which is dealt with under wider Government policy (such as the UK’s climate change framework).

Lord Carloway commented that this was an academic issue in any case, as it had not been shown that the new oil fields at Vorlich would increase, or even maintain, the current level of consumption of oil and gas in the UK.

Key takeaways

• Regulations will be given their literal meaning in the absence of manifest absurdity or injustice.
• Procedural flaws will only result in a successful appeal where some form of prejudice can be demonstrated.
• Errors or fact alone are not sufficient – the error must be shown to have materially impacted the decision.

The full opinion can be viewed here.