Slow Down Mr. Sunak: The UK Has an Obligation to Consult its Neighbours Before you can Authorise Millions of Tonnes of CO2 Emissions

[Peter Splinter is currently an independent consultant working on the relationships between human rights and environmental protection. He has previously represented Amnesty International at the United Nations in Geneva and worked with the Canadian foreign and justice ministries as a diplomat and legal counsel.]

With reference to the recent authorisation of the exploitation of the Rosebank oil and gas field by the United Kingdom (UK) and UK plans to authorise further North Sea petroleum development, this article discusses how the environmental impact assessment requirements of the UN Economic Commission for Europe’s Convention on Environmental Impact Assessment in a Transboundary Context (the Espoo Convention) could be used to require the UK and other Parties to take account of the transboundary climate change consequences of authorising additional greenhouse gas emissions in connection with the development of new oil and gas resources. 

The Convention requires its Parties to ensure that other Parties and members of their publics likely to be affected by a proposed activity covered by the Convention and likely to cause a significant adverse transboundary impact are able to participate in an environmental impact assessment undertaken prior to a decision to authorize or undertake the proposed activity. The UK failed to do this in connection with the very substantial greenhouse gas emissions that will result from the exploitation of the Rosebank field. Procedures under the Espoo Convention offer the possibility of holding the UK accountable for that failure and, equally important, establishing that all greenhouse gas emissions resulting from the development of oil and gas resources must be covered by environmental impact assessments required by the Convention.

The Rosebank Oil and Gas Field Development 

On 27 September 2023, the UK Government gave its consent for development and production of the Rosebank oil and gas field. The Rosebank field is estimated to contain between 300 and 500 million barrels of oil, and according to a cross-party group of British parliamentarians, its exploitation could release 200 million metric tonnes of carbon dioxide (C0²) into the atmosphere. That is more than the combined annual CO² emissions of all 28 low-income countries in the world.

When the International Energy Agency has concluded that the pathway to reaching net-zero emissions globally by 2050 requires that from 2021 no new oil and gas fields be approved for development, and when the Intergovernmental Panel on Climate Change determines that projected CO² emissions from existing fossil fuel infrastructure without additional abatement would exceed the remaining carbon budget for 1.5°C, the authorisation of exploitation of the Rosebank field was environmental recklessness at its worst. Unfortunately, it might only be the beginning of an ongoing UK practice.

The authorization of exploitation of the Rosebank field was subject to the prior approval of an environmental impact assessment (EIA) by the UK Secretary of State for Energy Security and Net Zero. The Environmental Statement of the lead company seeking approval to develop the Rosebank field, Equinor of Norway, determined that “the impact of [greenhouse gas] emissions from the Development is determined to be not significant.” This formed the basis for the EIA which was considered by the Secretary of State, whose approval of 15 June 2023 concluded that “the project will not have any significant effects on the environment”. The approval deemed that the effect of the project on climate change would be “not significant”.

The trickery at the heart of the process that led to the conclusion that a project that would lead to the release 200 million tonnes of C0² would not have a significant effect on climate change is that the Environmental Statement and the EIA took no account of the C0² that would be released in the consumption of the oil and gas extracted from the Rosebank field (their downstream scope 3 emissions). In an approach that appears tailored to the needs of the petroleum industry, the Environmental Statement focused only on greenhouse gas emissions during the installation and operation of the drilling and production facilities and the accompanying subsea infrastructure. Hence only the environmental impact of those scope 1 and 2 greenhouse gas emissions were included as were as minimal upstream scope 3 emissions resulting from logistical services for the drilling and production facilities. 

The Rosebank EIA and the Secretary of State’s approval do not spell out the rationale for excluding the downstream greenhouse gas emissions from the oil and gas produced. However, the rationale can be found in UK court judgements – in one case involving a challenge to the exclusion of scope 3 emissions in an EIA related to a project to produce fossil fuels through fracking and in another involving challenges to a series of UK government licensing decisions related to offshore oil and gas exploration and development. In essence, the position of the UK government, upheld to date by the UK courts, is that the ultimate consumption of the fossil fuel products derived from an oil and gas development project oil does not form part of the oil and gas development project for the purposes of an EIA. However, this could change as the decision in the fracking case is subject to an appeal to the UK Supreme Court. Moreover, the environmental NGOs  Greenpeace and Uplift are challenging the Rosebank field development authorization in the UK courts, including for the exclusion of the scope 3 emissions from the EIA. 

The Requirements of the Espoo Convention

Paragraph 15 of Appendix I to the Convention covers offshore hydrocarbon production and makes it clear that development of the Rosebank field comes within the Convention’s scope. Arguably, the Convention required that the United Kingdom notify other affected Parties of the proposal to develop the Rosebank field as an activity “likely to cause a significant adverse transboundary impact” (Espoo Convention, articles 2(4) and 3(1)). The untested definition of “transboundary impact” presents a possible hurdle in its stipulation that it means “any impact, not exclusively of a global nature” (article 1(viii)). Scholarly analysis suggests that it is an open question whether this definition captures climate change resulting from greenhouse gas emissions as a covered transboundary impact. As far as the Parties are concerned, it also appears to be an open question whether scope 3 greenhouse gas emissions are captured by the Convention.

There can be no doubt that the release of 200 million tonnes of C0² resulting from development of the Rosebank field will have an adverse transboundary impact in all countries affected by climate change, including the Parties to the Convention, although the nature of that impact will not be the same in all countries. In the words of the Intergovernmental Panel on Climate Change, “Every tonne of CO² emissions adds to global warming.”

Arguably, the Convention required the UK to notify other Parties of the proposed development of the Rosebank field with a view to entering into consultations with affected Parties “concerning, inter alia, the potential transboundary impact of the proposed activity and measures to reduce or eliminate its impact” (articles 3(1) and 5). The Convention also required the UK to provide an opportunity to the public in the areas likely to be affected to participate in relevant environmental impact assessment procedures regarding the proposed development of the Rosebank field (article 2(6)). In addition, the Convention (article 6(1)) required that in taking the final decision on whether to authorise the development of the Rosebank field, the UK take account of comments or objections on the proposed development received from the public (natural or legal persons and civil society organisations, article 1(x)) of other Parties in areas likely to be affected before the final decision was taken. The UK failed to meet any of these requirements.

Using the Espoo Convention to Remedy the Shortcomings of the British EIA for the Rosebank Field

In cases of disagreement over the applicability of the Convention, there are Convention procedures for determining whether an activity is likely to cause a “significant adverse transboundary impact”.

A Party or Parties to the Convention can request the establishment of an inquiry commission established in accordance with the provisions of Appendix IV of the Convention to determine whether the development of the Rosebank field is likely to have a significant adverse transboundary impact. This procedure has been used once in a dispute over the “Likely Significant Adverse Transboundary Impacts of the Danube – Black Sea Navigation Route at the Border of Romania and the Ukraine”. In its report,the inquiry commission adopted language from an earlier ECE study on “Current Policies, Strategies and Aspects of Environmental Impact Assessment in a Transboundary Context” to establish the basis for assessing whether an adverse transboundary impact is likely to be significant:

In most cases, […] the decision that an adverse transboundary impact is likely to be significant would be based on a comprehensive consideration of the characteristics of the activity and its possible impact.

The UK’s compliance with the Epsoo Convention can also be examined by the Convention’s Implementation Committee, which consists of eight Parties to the Convention and has a mandate to “review […] compliance by the Parties with their obligations under the Convention with a view to assisting them fully to meet their commitments”.  The Committee may become seized of a matter on the basis of a submission by one or more Partes to the Convention that have concerns about another Party’s compliance with its obligations. Alternatively, where the Committee becomes aware of possible non-compliance by a Party with its obligations, it may seize itself of the matter. The Committee can become aware of a possible non-compliance on the basis of the Parties’ work under the Convention or “any other source”. In one matter requiring a determination of whether the UK had met the requirements of the Convention in connection with the planned construction of a nuclear power plant at Hinkley Point C, the Committee seized itself of the matter on the basis of information provided by a German parliamentarian and eventually found that the United Kingdom had failed to comply with its obligations under the Convention. The Committee’s findings were endorsed by the Convention’s supervisory body, the Meeting of the Parties.

It is foreseeable that out of inter-state comity, Parties to the Espoo Convention will be reluctant to challenge the decision of the UK government to authorize the exploitation of the Rosebank field without an assessment of the impact of the downstream greenhouse gas emissions. However, Parties have a history of challenging other alleged failures to respect the requirements of the Convention. Moreover, as illustrated by the Hinkley Point C case mentioned above, practice under the Convention makes it clear that the pubic (natural or legal persons and civil society organisations) can prompt non-compliance procedures by sending complaints (formally called “information”) to the Implementation Committee alleging violations of the Convention. The Committee can consider such information in deciding whether to look into a matter as one of possible non-compliance. 

The Implementation Committee reports the outcome of its compliance review and any related recommendations to the Meeting of the Parties, which may decide upon appropriate general measures to bring about compliance with the Convention and measures to assist an individual Party’s compliance. Such measures could go as far as including a call to suspend a project in connection with which non-compliance was found.

Conclusion

If the Implementation Committee were to determine that the UK had failed to comply with the Espoo Convention in connection with its authorisation of the exploitation of the Rosebank field, it is not clear that the remedies available under the Convention would lead to the reversal of the authorisation to exploit the Rosebank field. Nonetheless, if the need to account for downstream scope 3 emissions in required environmental impact assessments can be established, the political costs of authorising future oil and gas development would be raised significantly. This would be not only for the UK, but also for other Parties to the Convention that exclude the consideration of downstream scope 3 emissions from environmental impact assessments for oil and gas projects, such as Canada and Norway.