Judicial Review Reform And Climate Change/ESG Actions: Risks To Your Business?

• Published date: 17 July 2023
• Subject Matter: Environment, Government, Public Sector, Energy and Natural Resources, Energy Law, Environmental Law, Oil, Gas & Electricity, Government Contracts, Procurement & PPP, Climate Change
• Law Firm: Norton Rose Fulbright
• Author: Charlie Weston-Simons, Stuart Neely, Andrew Judkins and Beth Greenwood

Judicial review is increasingly used by interest groups as a tool to pursue climate change and ESG related claims. An area which has seen increased judicial review claims is climate change related actions, where claimants seek to challenge decisions which may impact the environment or levels of carbon emissions. These claims are often directed at companies operating in the energy and natural resources sectors. Although in formal terms judicial review claims must concern decisions of public bodies, government decisions (such as licence awards) which are subject to judicial review will impact directly on the operations of such companies.

Judicial review has recently been reformed by the changes brought in by the Judicial Review and Courts Act 2022 (the Act) in May 2022. However, these changes were relatively modest and possible further reform of the judicial review process has been considered by the UK government. Any further reform would come at a time when judicial review claims are on the rise.

We will consider some of the changes introduced by the Act, what they may mean for climate change related judicial review proceedings and how the courts have dealt with recent judicial review proceedings in this area. We will also consider how further reform could impact the risks of future actions against companies in the energy and natural resources industries.

Requirements for judicial review claims

(i) Who may be subject to a claim for judicial review and by whom?

Claim must relate to a decision of a public body

A claim for judicial review must challenge a decision, act or failure to act by a body "exercising a public function". This means decisions taken by public bodies, such as government departments, but can also extend to private bodies where a public function has been contracted out to them.

In practice, decisions by public bodies very often directly affect private bodies, for example in relation to licences, regulatory decisions or government supported financing. This means that judicial review claims frequently affect the interests of companies. A recent example of this is Greenpeace Ltd v The Advocate General & Anor and BP Exploration Operating Company Ltd & Anor [2021] Scot CSIH 53. In this case, Greenpeace challenged the decisions of BEIS and the Oil & Gas Authority in relation to the grant of permits to bp and Ithaca Energy to extract oil from the Vorlich field in the North Sea. The challenge was originally brought in the English courts in November 2019 as a judicial review claim, which was partially successful in relation to failure to publicise a notice. The Scottish proceedings related to an appeal under the regulations relevant to the grant of the permit, where Greenpeace raised both legal and factual issues. The proceedings were dismissed in October 2021 and leave to appeal to the Supreme Court was refused in August 2022. Accordingly, although the challenge ultimately failed, the proceedings lasted nearly three years and involved complex jurisdictional, legal and factual issues.

Applicant must have 'standing'

In order to bring a claim for judicial review, the applicant must show that it has...