Climate Change Litigation Update

In February 2022, the High Court handed down its judgement in the judicial review of the Oil and Gas Authority’s (OGA) strategy for the ongoing oil and gas exploration in the North Sea in the case of R (Cox, Loach, Sweden) v Oil and Gas Authority.

The strategy pursued the OGAs statutory objective of “maximising the economic recovery of UK Petroleum”. The claimants challenged the OGA’s strategy on two grounds:

1. Firstly, 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 maximising economic recovery was a matter for the OGA and not the Court.
2. Secondly, that the strategy was irrational because it would lead to more extraction of petrol resulting in more emissions and more stranded assets and this conflicts 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. It was found that this wasn’t the case as the OGA had taken climate change into account in various ways when devising the strategy.

Even though there has been no notable success so far, climate change litigation continues to arise in the judicial review process in England albeit the judicial reviews do seem be gaining some traction in the Courts.

The biggest hurdle most claimants are likely to face is that public bodies’ statutory duties in this area are often “process duties” in that they are required to have regard to various climate change factors but the questions of how to balance these factors is ultimately a matter for them. However, even where public bodies continue to succeed in court, it brings publicity to the cause, reputational risk to the defendants and ultimately keeps climate change high on the government agenda.

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