- Lawyers for the UK government said that emissions coming from burning oil extracted by BP are ‘not relevant’ when granting an oil permit.
- Government tells the court it is ‘impossible’ to assess emissions coming from burning oil extracted.
- The government blamed Greenpeace for failing to take part in the oil permit consultation process – which the government did not make public.
- Case ruling could have huge implications for the proposed Cambo oil permit, which the government is set to also approve without taking climate impacts into account.
GOVERNMENT lawyers have argued that climate change is “not relevant” when making oil permit decisions, and that assessing emissions from burning oil would be “impossible”, in a landmark legal case unfolding today [THURS 2].
Greenpeace is challenging the government in the Court of Session, Scotland’s highest court, over a decision to grant a permit to BP to extract 30 million barrels of oil from the Vorlich field, east of Aberdeen. It is the first time an offshore oil permit has ever been challenged in court.
Roddy Dunlop QC, representing the UK government’s Business Energy and Industrial Strategy Department, argued that the legal duty to consider ‘indirect impacts’ of oil drilling did not extend to the emissions coming from burning oil extracted .
Mr Dunlop said: “It is pretty clear when one’s talking about burning the ultimate fuel, the case for Greenpeace is that it’s indirect [in its effect on climate change].
“That doesn’t work because the focus is on the project itself, and not on the end product.”
He argued: “It does not extend to whatever might be done with what is won from the installation.”
Mr Dunlop continued to argue that assessing these emissions would be “unachievable” because this is “something that can’t be properly measured”.
His comments come just five months after the government promised to introduce “climate compatibility checks” before issuing new oil licences – though it’s unclear what these checks would entail.
Government arguments are “astonishing” just two months before COP26
Mel Evans, head of oil and gas transition at Greenpeace UK, said: “It is astonishing that, two months before the UK hosts global climate talks, this government is arguing in a court of law that climate change is ‘not relevant’ to oil permitting decisions.
“The biggest harm that comes from oil drilling is the emissions that come from burning the oil extracted – and that damage is recognised by energy agencies, banks and even oil companies around the world, so it is ridiculous for the UK government to argue differently.”
The case comes after Greenpeace staged a major protest against BP in 2019, where activists blocked the company’s contracted rig for 12 days at sea on its way to the Vorlich field.
BP began extraction from Vorlich in November 2020 and has said it expects to extract 20,000 barrels of oil per day at peak production.
This means that some 40,000 barrels could be extracted while the court hearing is taking place.
In court today the government also argued that it could not be criticised for failing to take climate considerations into account, because Greenpeace didn’t raise these arguments in the consultation process. Greenpeace argues that the government failed in its legal duty to make the consultation public, which might explain why it received zero responses. The government has already lost an earlier judicial review case brought by Greenpeace after it failed to publish the BP permit decision, and it was forced to publish the permit retrospectively.
The Oil and Gas Authority argued that it is not obliged to consider the environment in permitting decisions, and stated that its role is to maximise the amount of oil extracted, under a policy known as Maximum Economic Recovery. This policy is subject of a separate court case because the assessment of economic value of oil fails to include an assessment of the huge tax breaks afforded to oil companies.
Today’s case is being heard by a panel of three judges: Lord Carloway (the Lord President), Lord Menzies, and Lord Pentland.
Greenpeace’s legal grounds
On Wednesday Greenpeace argued that when the government granted BP’s drilling permit, it failed in its legal duty to check what impact that would have on the climate. As part of the permit process, the government is required to do an Environmental Impact Assessment, in which a company’s environmental statement is published and put out for public consultation. This process must consider the environmental impacts of a proposed oil or gas project, in the context of other projects with similar, cumulative environmental impacts – including emissions resulting from burning the fossil fuels extracted.
At present, the government only assesses the impact of emissions that come from oil production, and disregards the emissions resulting from burning the oil extracted. Emissions from burning the oil extracted at Vorlich will be the equivalent of over three coal plants running for one year .
In March, the government promised to undertake “climate compatibility checks” for future licences, but these would not apply to permits granted to fields which have already been licensed – like Vorlich or Cambo. And the government hasn’t yet launched any kind of consultation on what these checks should entail. If these proposed checks do not extend to emissions resulting from burning the oil extracted, then they will go no further than the inadequate processes already in place.
The licence for the Vorlich field was granted in 1981, when no obligations or legislation existed to regulate climate impacts. Therefore unless these emissions are considered in the permitting process, it will not be considered by the government at all – which in today’s context is an abhorrent failure of duty.
Greenpeace also argued that the government failed to properly consult on its decision to grant BP’s Vorlich permit. The government has a legal duty to give members of the public a chance to be consulted on, and object to, permit decisions, and the government is legally required to publish decision outcomes. But the Vorlich consultation was so poorly publicised that it received no responses, and the government failed to publish its final decision, until it was forced to do so by Greenpeace in the courts.
Another element of Greenpeace’s argument is that the government failed to assess how much flaring would take place as a result of this permit being granted. BP mis-stated its expected flaring in its initial application, and underestimated the flaring by 10 times, in what appears to be a clerical error . The government failed to notice this mistake as part of its permit process.
This week’s court case is the latest in a string of legal battles where campaigners are holding governments and oil companies to account for their policies on fossil fuels in the face of climate destruction.
The UK government is facing a second legal challenge from campaigners at Paid to Pollute, over its policy of granting state aid to oil companies. And in May, a Dutch court ordered Shell to cut its oil production by 45% by 2030.
Greenpeace has written to the government warning that if it decides to approve an oil permit at Cambo, it will launch a legal bid to overturn the decision.
Contact the Greenpeace press office: firstname.lastname@example.org
 As stipulated in the Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment and in the Offshore Petroleum Production and Pipelines (Assessment of Environmental Effects) Regulations 1999
 Burning 30m barrels of oil would create approximately 12.7m tonnes of CO2, the equivalent of 3.2 coal plants running for one year.
 In BP’s environmental statement (table 5-6) they said they would flare for the equivalent of four days per year, and said that equated to 1,572 tonnes of oil and 690 tonnes of gas.
But over the lifetime of the project (10 years) they gave the exact same figures (when really that should be times by 10).
Why is the case being held in Scotland, if the permit decision was made by the UK government?
Decisions about oil permits are taken by the Oil and Gas Authority, part of the Business, Energy and Industrial Strategy Department of the UK government.
Although Westminster ultimately holds the power on these decisions, the oil well (subject of the permit) is in Scottish territory, and Regulation 16 of the Offshore Petroleum Production and Pipelines (Assessment of Environmental Effects) Regulations 1999 says the case must be taken in Scotland.