UK High Court dismisses environmental judicial review challenge to gas storage project

The High Court in Northern Ireland has dismissed a judicial review made on behalf of No Gas Caverns Ltd and Friends of the Earth in respect of the government’s decision to grant a marine licence for a gas storage project expected to last around 40 years (see No Gas Caverns Ltd & Anor [2023] NIKB 84). 

The Applicants brought the challenge over concerns about the impact of the project on protected species, the seabed and the marine environment as well as climate emissions. 

It is the latest in a string of judicial reviews brought by environmental NGOs, most of which have failed despite the courts’ express recognition of the immense policy challenge which climate change entails. 

Background

No Gas Caverns Ltd and Friends of the Earth (together, the “Applicants”) applied for judicial review of decisions taken by the Department for Agriculture, Environment and Rural Affairs (“Department”). The Department had decided to grant the developer, Islandmagee Energy Limited (“Developer”), a marine construction licence, a discharge consent, and a revised abstraction licence. Collectively, these licences authorised the marine aspects of the gas storage project.

In 2019, the Developer submitted to the Department an updated Environmental Conditions Report and Habitats Regulations Assessment, and public consultation commenced shortly afterwards. The Applicants and various other interested persons filed objections.

In September 2021, the responsible minister of the Northern Ireland Executive approved the project on the basis that “appropriate controls are in place to mitigate environmental impacts”. 

In November 2021, the Applicants challenged that decision. A central pillar of the Applicants’ challenge was the Department’s alleged failure to take into account material considerations, and the taking into account of immaterial considerations, a line of authority with its origins as a “sub-species of Wednesbury irrationality”.

The High Court also commented at the outset on the importance of early and orderly identification of grounds – reiterating Singh LJ’s previous observations about “unfortunate trends” in public law litigation whereby grounds of challenge evolve and are only properly articulated at a late stage in the proceedings and highlighting the practical problems that caused in this case. This critique was reiterated throughout the judgment.

Decision 

The judgment opens with a striking passage on the challenge governments face in energy policy. Quoting Mr Justice Maurice Collins, who in turn recently drew on the Ancient Greeks to explain the challenge, Humphreys J said:

“Regulators, operators and users have for some time been confronting a series of profound and conflicting challenges. On the one hand, there is the Scylla of the energy crisis resulting from the invasion of Ukraine…On the other, there is the Chrybdis of global warming and climate change…Steering a safe course between these twin perils is a challenge of immense proportions.”

The judge ultimately dismissed the challenges, as detailed further below. But quite apart from the specifics of the legal conclusions, Humphreys J echoed several recent cases on the role of UK courts in combatting climate change, saying: 

“an analysis of the role to be played by fossil fuels in the UK’s future energy requirements and how this may interact with the route to net zero is quintessentially a matter for policy makers and not the courts…[i]t is the role of government to determine how the goal of net zero is reached.”

On the specifics of each ground of challenge:

• Failure to refer the applications to the Executive Committee: The Applicants contended that the project was cross-cutting, significant and/or controversial, and ought to have been referred to the Executive Committee pursuant to the Northern Ireland Act 1998 (the “NIA”) (ss 20 and 28A). Humphreys J noted that the NIA offers no definition of ‘significant’ or ‘controversial’: [57]. After reviewing the case law and the ordinary meaning of the relevant terms, the Court found this ground failed, noting that there was no evidence that the Minister embarked on the kind of ‘solo run’ which was the mischief aimed at by the legislation: [76].  
• Taking into account an irrelevant consideration: The Applicants argued that an immaterial consideration was taken into account, namely the ‘community fund’ proposed by the Developer. Humphreys J was satisfied that, whilst reference to the proposal ought not to have featured in the submission to the Minister, it was not treated as a material consideration. Therefore, on the balance of probabilities, the Court was not persuaded that an irrelevant consideration was taken into account: [87].
• Failure to comply with section 58 of the Marine and Coastal Access Act 2009: The Applicants originally argued that the Minister had failed to take the decisions in accordance with the UK Marine Policy Statement, which requires consideration of the impact on climate change of a project. This argument later developed to: (i) taking into account an irrelevant consideration (i.e. the potential for the cavers to be repurposed for hydrogen storage); (ii) an irrational assessment of climate change impact; and (iii) the failure to take into account a material consideration (namely the energy use of the project). Humphreys J found that none of the aspects of this ground of challenge were arguable: [105].
• The failure to take into account the response from the Council for Nature Conservation and the Countryside (“CNCC”) and the impact on scallops and skate: Humphreys J found that, while this ground was arguable, it was out of time and, in the absence of the Applicants providing any reasons for delay, Humphreys J declined to exercise his discretion to extend the time: [119]. Even if leave had been granted, the grounds of objection put forward by CNCC were set out by other objectors, and Humphreys J would have been satisfied that the outcome of the application would have been the same: [212]. Further, conditions were imposed on the marine licence to mitigate any risk of harm to scallops ([124]) and there was no evidential basis for the assertion that the Department had not considered the impact of the project on skate: [128].
• Breach of regulation 43 of the Habitat Regulations: The Habitat Regulations Assessment concluded that there would be loss of seabed as a result of the development but that this would not be significant and that there would be no adverse effects on the integrity of the site. The Applicants argued that the Habitat Regulations Assessment was flawed on the basis of certain calculations and the quality of the data provided. Humphreys J found that the Applicants failed to demonstrate that there was a real risk arising from the incorrect calculations, and in relation to the data issue, described this as “classic Wednesbury territory”: “[t]he applicants must show not that a body of scientific opinion disagrees with the Department’s conclusions but that the decision is irrational, bearing in mind the appropriate margin of appreciation when considering matters involving expert opinion”: [142]. The Applicants had not done so, and the ground failed: [147].
• The failure to assess the environmental impact of decommissioning: The Applicants argued that the Department acted unlawfully by divorcing the construction and operation of the project from its eventual decommissioning: [148]. Humphreys J reasoned that this was a matter of evaluative judgement, only impeachable on irrationality grounds, and that it would itself be irrational to seek to prescribe a detailed method by which the caverns ought to be decommissioned decades before the work could be carried out: [153]. The Applicants’ contention that the decommissioning element of the works had not been subject to assessment was not supported by the evidence and there was nothing to suggest that the approach of the respondent was Wednesbury irrational: [156].
• Failure to comply with Schedule 5 of the Environmental Impact Assessment Regulations: The Applicants argued that the Department failed to address certain representations, including as to the adequacy of bird surveys, noise impact and the impact of the project on protected species, as required by Schedule 5 of the EIA Regulations. Humphreys J found that the Department was aware of, and turned its mind to, Schedule 5 and satisfied itself as to the specific matters contained in those representations. The Applicants had not therefore identified the issue of disputed fact which ought to have triggered the duty in Schedule 5 of the EIA Regulations to consider whether to instigate a public inquiry or appoint an expert and, in the absence of this, the challenge did “not get off the ground”: [161].

Comment

As discussed in our previous blogs, Humphrey J’s decision reflects the broader trend in judicial thinking regarding the limited scope of judicial review and the narrow circumstances in which courts will intervene in government decisions on climate change. 

Humphreys J’s judgment emphasises that courts’ supervisory role is limited, that they “should be wary to avoid excessive legalism and a hypercritical approach to planning decisions” ([34]) and that “judicial review is the not the appropriate means by which to resolve disputes between scientific experts”: [134]. 

The judgment also makes clear that the rationality bar is high in cases where Parliament has empowered a decision-maker to make a determination based on expert and scientific advice. This deference to public bodies’ assessments is a theme that runs through the reasoning in this case, as well as other recent challenges brought by environmental NGOs.

This case also demonstrates a limitation for applicants using judicial review as a method of attack. Judicial reviews have short deadlines, and whilst claimants may have sufficient information to know that they wish to bring a challenge against a decision-maker, they may struggle to articulate their case clearly and with specificity when filing. For example, it can be difficult to identify grounds before receiving disclosure which identifies the decision-makers’ conduct with sufficient precision. Courts have nonetheless repeatedly criticised parties when a case develops throughout its pleadings. This lack of procedural rigour can be fatal to an applicant’s case and their ability to persuade the Court.

Notwithstanding this, the case also illustrates that judicial review remains the legal tool of choice for environmental NGOs. Despite a spate of unsuccessful cases, environmental NGOs and community groups continue to devote significant effort and money to bring challenges to take on what they believe is a decision which will damage the environment in the future.