Rosebank and Jackdaw 

Background

In June 2024, the UK Supreme Court issued its seminal decision in Finch on how emissions from carbon-emitting projects should be assessed within Environmental Impact Assessments (EIA). Finch concerned expansion of an oil extraction facility in Surrey. The UKSC held that the ‘downstream’ emissions from the ultimate combustion of extracted oil had to be assessed as part of the EIA accompanying the planning application. 

This judgment was followed in the subsequent Whitehaven Colliery proceedings ([2024] EWHC 2349 (Admin)) where the High Court again held that downstream emissions, this time from burning coal extracted from the mine, had to be assessed. 

The issues in R (on the application of Finch) v Surrey County Council [2024] UKSC 20 have now been considered in Petitions by Greenpeace Limited & Uplift [2025] CSOH 10 against the Secretary of State’s grant of licences for two major new oil and gas fields in the North Sea known as Jackdaw and Rosebank. Within the proceedings, all the parties agreed that under Finch, it would be necessary to assess the downstream emissions as part of the EIAs required by the licence applications. This was not done. The key issue in these proceedings was whether or not the court should quash (or in the Scottish Court “reduce”) the licences, or simply declare their grant unlawful. 

Evolving climate change litigation

Whilst the judgment does not further develop the principles in Finch, it provides some important consideration of appropriate remedies in situations where the law is in flux, and in doing so also signals the courts’ evolving approach to the climate emergency. As the fallout from Finch continues, we can expect further judgments on climate change issues, and this presents potential difficulties for developers where interpretation of environment and planning law could rapidly change whilst a development proposal is still under consideration by planning authorities. The Jackdaw and Rosebank decisions shine some light on how this could impact on the decision-making process.

Developer bears the risk of a change in law?

Unsurprisingly, Shell, Equinor and Ithaca as beneficiaries of the licences argued that they should not be quashed. In both the High Court and Court of Appeal, the courts held that downstream emissions did not need to be assessed. The Jackdaw consent was granted after the Court of Appeal ruling in Finch but by that time an appeal had been made to the UKSC. The Rosebank consent was issued after Finch was heard in the UKSC but before the final judgment. They argued that both the High Court and Court of Appeal had ruled in Finch that downstream emissions did not need to be assessed. Work had commenced on developing the infrastructure for extraction and all developers argued the impact of delaying the projects could run into the £100millions. 

The Court was largely unsympathetic to the fact that the licence holders had commenced substantial works at risk. It was known at the time that the Finch decision by the Court of Appeal had been appealed and it was entirely possible the UKSC would take a different view, which indeed it did. EIA is a public process, and the Court recognised the importance of the public interest in contributing to a decision on a licence, noting that “just as the developers have an interest on the impact of the remedy on their business, members of the public have an interest in the impact of the remedy on their lives”.

The Court found that all of the parties ought to have known that the law was uncertain at the time the consents were granted, and in proceeding with the projects during that period, “rather than waiting until the law was made certain, the developers took the risk that they were proceeding on the basis of an unlawful consent”. Ultimately the court held that the licences would be reduced (quashed), but that would be suspended until the applications were redetermined, the Court further held that the developers could continue with preparatory works, but oil and gas production could not take place. However, there was no guarantee that new licences would be granted (or not challenged on other grounds), so the existing and any further works would be at risk. 

The key takeaway from this judgment is a reminder of the implications of relying on an environmental consent that is granted whilst the law is still very clearly in flux. The law around EIA and other environmental assessments is constantly developing, and if an important issue is moving through the courts, such as that considered in Finch, developers must closely monitor those cases and consider the implications of a change in the law on their proposals. 

The original decision in Finch by the High Court was issued in December 2020, with the Court of Appeal decision in February 2022; where a live appeal process is in train, this is a long time for a developer to wait to get certainty on the law. For projects with a long gestation or multi-stage consent, the risk of a significant change in the law must be taken into account. The fact that a final judgment has not been issued is not a cast-iron argument in itself against a decision being quashed, even where a developer could be experiencing significant financial prejudice as a result.

Climate change as a key consideration

A further point to note is the increasing importance that objectors and now the courts are placing on climate change as a consideration in EIA for development consents. This trend was starting to ramp up before Finch, but the UKSC in many ways turbo-charged the issue. As noted in the Greenpeace judgment; “the effect of the burning of fossil fuels on climate change and the lives of individual persons is now well recognised in law”. This again emphasises the importance of taking likely significant climate change impacts into account within the EIA process.

The Greenpeace judgment in far from the end of this matter, and so developers and decision-makers alike will need to monitor this rapidly developing area of law closely.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2025. Specific advice should be sought for specific cases. For more information see our terms and conditions.