judgment

R (Boswell) -v- SoS for Energy Security and Net Zero & Ors - judgment

Litigation

Sabin

Sabin Litigation

Filing Year For Action

Dr. Andrew Boswell, represented by Leigh Day, filed a complaint on February 16, 2024, against the first respondent, the Secretary for Energy Security and Net Zero, for granting the application of a development consent order to the second respondent, Net Zero Teesside Power Limited and Net Zero North Sea Storage Limited. The plaintiff challenged the issuing of the development consent order under section 114 of the Planning Act 2008 “for a new gas-fired electricity generating station at Teesside with Carbon Capture Utilization and Storage”. The plaintiff contends that the Secretary of State for Energy Security and Net Zero committed a legal error when assessing the significance of the greenhouse gas emissions that would result from the power plant. 

The Planning Act 2008 governs nationally significant infrastructure projects (NSIPs), requiring the Secretary of State to conduct an Environmental Impact Assessment and to consider National Policy Statements before issuing development consent. In this case, the relevant National Policy Statement is EN-1, which “addresses GHG emissions and the UK’s net-zero targets.”

The plaintiff provided four grounds for judicial review, as follows. 

Ground 1 - The claimant alleged that the Secretary of State failed to provide legally adequate reasons for its conclusion that the development of the power plant would contribute to the transition to net zero. The claimant contended that the Secretary of State relied on the Institute of Environmental Management Assessment (IEMA) guidance to find that the project constituted greenhouse gas emissions with a significant adverse effect, deeming it incompatible with net-zero trajectories. On this point, the plaintiff alleged inconsistencies in the Secretary of State’s decision.  

Ground 2 - The plaintiff argued that the Secretary for Energy Security and Net Zero erred in its interpretation of paragraph 5.2.2 of National Policy Statement EN-1, which states that CO2 emissions from fossil fuel-based infrastructure are significant. The plaintiff alleged that the Secretary of State misapplied the paragraph by also using it to shape the policy weight given to those emissions in the planning balance. 

Ground 3 - The plaintiff alleged that the Secretary of State was unlawfully endorsing the use of the IEMA guidance while also assessing significance in different ways without providing adequate reasoning.

Ground 4 - The plaintiff challenged the Secretary of State’s need for the project. 

On August 20, 2024, the High Court rejected all four grounds for challenge, dismissing the application for judicial review. Dr. Andrew Boswell appealed the decision on the first three grounds introduced at the High Court, which the Court of Appeal later dismissed on May 22, 2025. The Court of Appeal held that there was no legal inconsistency in accepting the IEMA guidance and determining that the development contributed to net zero goals, that paragraph 5.2.2 was lawfully interpreted, and that the Secretary of State could lawfully rely on IEMA guidance as long as their reasoning was clear. 

Dr. Andrew Boswell has now submitted a new claim for judicial review along with Good Law Project, contending that the government subsidy for the project unlawfully underwrites the developer's loans.  