Disputes Quick Read: Climate change litigation update

R (Cox, Loach, Sweeden) v Oil and Gas Authority

In February 2022, the High Court handed down its judgment in the judicial review of the Oil and Gas Authority's (OGA) Strategy for the ongoing oil and gas exploration in the North Sea – as mentioned in our January update.

The strategy pursued the OGA's statutory objective of "maximising the economic recovery of UK petroleum" (MER). The claimants challenged the OGA's strategy on two grounds:

• First, that the strategy didn't benefit the UK economy because of favourable tax treatment to oil and gas companies, in particular negative tax flows to such companies. Cockerill J dismissed this ground, finding that the interpretation of MER was a matter for the OGA (with its specialist understanding and judgment), not the Court.
• Second, that the strategy was irrational because it would lead to more extraction of petroleum, resulting in more emissions and more stranded assets, and this conflicted with the government's net zero target. Cockerill J dismissed this ground too, noting that it might be different if the OGA had paid no regard to climate change. But that wasn't the case; the OGA had taken climate change into account in various ways when devising the strategy and therefore hadn't acted irrationally.

Comment

Climate change litigation continues to arise in the judicial review process in England, even though there has been no (notable) success so far. However, these judicial reviews are gaining some traction in the courts, with permission being granted in this case, and a detailed judgment being given in another recent case, albeit permission was refused in that instance.

In March 2022, ClientEarth and Friends of the Earth were granted permission for a judicial review of the government's net zero strategy. Specifically, the applicants claimed that the net zero strategy is insufficient to meet the net zero target, in breach of the government's duty under the Climate Change Act. ClientEarth also claims that the government's approach risks needing more drastic measures in the future, disproportionately affecting young people's right to life and family life.

One hurdle claimants are likely to face is that public bodies' statutory duties in this area are often "process duties" (as Cockerill J put it in the OGA case); they're required to have regard to various climate change factors, but the question of how to balance those factors and others is ultimately a matter for them.

It's also noteworthy that at the permission stage of the OGA case, some scepticism was expressed about Ground 2 and permission was only granted for it because of its links with Ground 1. We may see more of this in the future: climate-focussed issues bolstered by other, more sound legal arguments.

Whether cases against public bodies ultimately succeed in court, they bring publicity to the cause, reputational risk to the defendants, and may well help to keep climate change high on the government's agenda. They won't be going away any time soon.