Cox et al v Oil and Gas Authority & Others ("Paid to Pollute case")

In 2021, three climate activists by the names of Jeremy Cox, Mikaela Loach, and Karin Van Sweeden brought a legal challenge against the Oil and Gas Authority and the Secretary of State for Business Energy and Industrial Strategy, regarding the UK Government’s adoption of a new Oil and Gas Strategy, alleging that it was unlawful and seeking a declaration to this effect. The High Court delivered its judgment in January 2022.

Background
The case concerned the UK Government’s new Oil and Gas Strategy, which was laid before Parliament in December 2020, coming into force in February 2021. The Strategy gave the Oil and Gas Authority a dual mandate to both ‘secure that the maximum value of economically recoverable petroleum is recovered from the strata beneath relevant UK waters’, and in so doing, ‘take appropriate steps to assist the Secretary of State in meeting the net zero target’ , setting out plans to support efforts to exploit North Sea oil and gas reserves. The Petroleum Act 1998 mandated that the Strategy needed to ensure the maximisation of the ‘economic recovery of UK petroleum’. The Claimants challenged this on two grounds. The first ground of challenge alleged error of law and/or frustration of statutory purpose, with the Claimants arguing that the Strategy had widened the definition of ‘economically recoverable’ too wide by ignoring the effect of government-backed financial support, such that activities that are not ‘economic’ for the UK are still sought to be maximised through the Strategy. The Claimants said that this endangered the UK’s ability to meet Net Zero, as required by the Climate Change Act 2008. It was at issue therefore whether the Oil and Gas Authority’s definition of ‘economically recoverable’ in its Strategy was consistent with the statutory term ‘maximising the economic recovery of UK petroleum’, or whether it frustrated the statutory purpose. The second ground alleged that the approach of the Oil and Gas Authority was irrational, given the UK Government’s net zero target under the Climate Change Act 2008, and statements made by the Authority in relation to that target.

Relevant Law and Principles

 * Error of law
 * Ultra vires/Frustration of Statutory Purpose
 * Judicial Deference
 * Irrationality

Status
The case was decided by High Court in January 2022, with the court rejecting both grounds of challenge. On the first ground of challenge, the court considered the court’s role, concluding that ‘considerable deference’ would be afforded to the Oil and Gas Authority’s expert view as a regulator [70], and that Parliament, when enacting the legislation, did not intend for the court to substitute its own determination of the best method of economic assessment [71]. Regardless, the High Court agreed with the Oil and Gas Authority’s interpretation of the legislative provisions [73]. On the second ground of challenge, the court stated that the Authority’s approach to the legislation was permissible; that the question of how to balance various objectives was a matter for the regulator rather than the court [136]. The court determined that the Authority had, in consulting on and adopting the Strategy, ‘manifestly had considerable regard to UK domestic action on climate change’ [136], that the Claimants arguments had ‘no basis in the statute’, and ‘[contradicted] the whole concept of maximising economic recovery’ [138]. Paid to pollute have stated that they will not appeal the ruling.

Takeaways
This case serves as a striking reminder of the limits of climate litigation in constraining executive discretionary power; the courts may be reluctant to overstep their perceived constitutional role, preferring to use the concept of deference to set the limits of legal action. The case thus emphasises the importance of political means of accountability, a point furthered by the fact that ‘Paid to pollute’, a group behind the litigation, pledged to ‘leave the courtroom and take to the streets’, rather than appealing the judgment.

Links

 * Cox & Ors, R (On the Application Of) v The Oil And Gas Authority & Ors
 * Paid to pollute