judgment

R (Hynot Limited) v Secretary of State for Energy Security and Net Zero (SSESNZ) and another - judgment

Litigation

Sabin

Sabin Litigation

Filing Year For Action

The Claimant, a group of climate and environmental campaigners from different backgrounds (such as Frack Free Dee, Friends of the Earth, Extinction Rebellion, Chester Sustainability Forum, and CAFOD), who oppose Carbon Capture and Storage (“CCS”) in respect of power generation, brought a judicial review against the decision by the Secretary of State for Energy Security and Net Zero (SSESNZ) to agree to the grant of consent for the “HyNet Carbon Dioxide Transportation and Storage Project – Offshore” (“the Development”), itself part of a larger project involving hydrogen production, transport and storage (the “HyNet Cluster”). The Development comprises 3 geological gas storage sites in the Liverpool Bay Area beneath the East Irish Sea, and is designed to store 109 million tonnes of carbon dioxide. The Claimant also challenged the decision of the Second Defendant, the Oil and Gas Authority (trading as the North Sea Transition Authority (NSTA) to grant consent for the Development. 

The challenge was brought on three grounds: Ground 1: (a) failure to assess major accidents and disasters (“MAD”) effects and/or (b) a failure to carry out a lawful public consultation, as required under the EIA Regulations. Ground 2: failure to assess cumulative effects of the Development on climate, as required under the EIA Regulations. Ground 3: failure to comply with the requirements of the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001 (“the Habitats Regulations”).

The Court refused HyNot’s application for judicial review. It found that: on Ground 1, the MAD had been assessed through the EIA process – which EIA legislation “does not impose a standard of perfection”, but rather requires “an adequate basis for public consultation”. On the flooding risk to the terminal, which the Claimant had highlighted, the Court found that the emergency shut down process which would be in place was “a rational approach”, and that the Secretary of State had made no arguable legal error in relation to it. Moreover, the Court found that the Secretary of State had complied with the consultation requirements. On Ground 2, the Claimant argued that, to fully assess the Development’s environmental effects and its impact on climate, the cumulative effects of the wider HyNet Cluster needed to be assessed. The Court disagreed, finding that it had to focus on the specific project, the Development; here, consent wasn’t being sought for a “multi-phase scheme”, and the HyNet Cluster was subject to its own EIA requirements, thus its impacts were not to be taken into account in assessing the Development’s own impacts. Moreover, the CO2 emissions deriving from hydrogen production wouldn’t be indirect, secondary, or cumulative effects of the Development, as a matter of causation. Regarding Ground 3, the Court held that the Secretary of State had “sufficient information to be satisfied that there would be no adverse effects upon the integrity of any relevant protected site”, therefore “it was rational to conclude further consultation with the public was unnecessary.” Lastly, the Court found that the claimant had not acted sufficiently promptly in filing the claim three months after the relevant decision had been made; and would have disallowed the application on this basis. The Claimant has stated it has appealed the decision. 