Maximising Economic Recovery of the same for Climate Protest in the UK Courts?

The High Court in London this week issued its judgment on a Judicial Review by environmental campaigners who were looking to challenge the UK Government’s strategic policy for the offshore oil and gas industry.

In particular, the challenge related to the definition of the term Maximising Economic Recovery (MER). The court dismissed the case, finding in favour of the approach that the government body, the OGA had taken, in particular that appropriate consideration had been given to the issues of climate change prior to the drafting of the most recent changes to the legislation, which came into effect at the beginning of 2021.

There will be lots of detailed legal coverage on the specific approach taken by Her Ladyship Mrs Justice Cockerill.  Notably though, within her lengthy discussion of the issues, she stated, that “The Claimants’ approach also entirely fails to grapple with the changes to reflect the move to net zero. Carbon costs have now been brought within the assessment of economic recovery”

What is however perhaps more interesting to many readers is that the very existence of this case is indicative of two wider issues.

The first is that the case highlights the obvious ongoing policy tension between the UK’s climate change (particularly Net Zero) commitments and the necessity of managing the nation’s existing and mid-term future energy needs. The recent rollercoaster of gas prices and their anticipated effects upon the population’s utility bills highlights that some degree of energy security (whether in terms of direct actual supply or valuable tradeable resources) must be factored into the policy mix. Is the alternative really that we will see utility companies and green campaigners joining hands to tell us to ‘put on another jumper’?

The second broad point worthy of highlight is that the use of the courts here and in the Vorlich field challenge in Scotland’s Court of Session in the autumn of 2021, as well as cases brought in other jurisdictions, such as the Netherlands, points to a concerted attempts by protesters to utilise every avenue open to them. This is understandable when they are seeking to keep the issues of the Climate Crisis in focus.

It’s a mark of a mature democracy that citizens are able to challenge decisions taken, without fear of reprisal from the state or vested interests. These cases point to a creditable level of ‘access to justice’. However, it is also wise to pick your battles to avoid the risk of being labelled as ‘crying wolf’ and potentially diluting important messages through fatigue or apathy.

By Neil Smith, Burness Paull LLP, Scotland, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact ukscotland@transatlanticlaw.com

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