Environmental campaigners were “substantially prejudiced” by the UK Government’s failure to follow procedures for publicising an oil company’s application for drilling consent, a court has heard.
In a hearing at the Court of Session Scotland’s highest civil court, it is calling for the Government’s decision to be overturned, and for BP’s permit to be revoked.
Greenpeace said that it is the first time an offshore oil permit has ever been challenged in court and that if it wins, the case could have huge ramifications for how the UK government makes future oil permit decisions.
Ruth Crawford QC, representing Greenpeace, said the organisation was deprived of the opportunity to comment on the application, and of a “clear, timely process for challenging the decisions”.
She told the court: “At the heart of this appeal is the complaint that there has been a myriad of failures in the public consultation exercise requirements described under the regulations.
“That has resulted in Greenpeace having been deprived of the opportunity as it is entitled, the opportunity to take part in the decision making process, and that by submitting timely representations on the environmental statement and to be involved in that decision-making process relative to the environmental statement.
“Self-evidently, because no such representations were made, they were not taken into account by the Secretary of State and no-one knows what, if anything, would have been made of these representations but as a result the Secretary of State has been deprived of information which could have been relevant and material to the decision.
“In addition to those failures there has been a further failure after the decision was made, as on no view could that have been said to have been published promptly as is required under the regulations.
“The whole point of course I would suggest of decisions being issued promptly is so that in turn a timely challenge can be made if so advised.”
Ms Crawford said Greenpeace would have wanted to make representations on a number of issues, including that the project would “significantly adversely affect” the environment.
She told the court: “Because they have not made those representations, in my submission the Secretary of State has failed to take into account material considerations, and flagging up that one of the major representations which Greenpeace would have wished to have made had it had the opportunity to do so would relate to the failure to assess climate change and the impact of greenhouse gas emissions.”
Ms Crawford said that advertisements about the project appeared in the Daily Telegraph and the Press and Journal, but that information did not appear on a Government website as required by regulations.
She said: “At best for the Secretary of State there has been published on a website a link to the Environmental Statement, but there has not been published on a website, whether BP’s or indeed any other website, a copy of the application for consent, nor has there been published alongside the application for consent and the environmental statement, the notice.
“The notice is important because it includes information on how to go about making representations.”
Ms Crawford told the hearing, which is taking place virtually, that the Secretary of State also failed to comply with a regulation requiring of prompt publication of the decision.
She said: “The submission will be that that failure has substantially prejudiced Greenpeace, the identified prejudice being that the development has been consented without an ability to challenge that in a timely and effective manner and indeed prior to the development commencing.
“In short, Greenpeace has been deprived of a clear, timely process for challenging the decisions and in either event the motion which I make to this court is that it should exercise its discretion quash the consents.”
The case, which is being heard by the Lord President Lord Carloway, Lord Menzies and Lord Pentland, continues.