BURNING QUESTION
A challenge related to a natural gas project in Mozambique has put the spotlight on the UK’s decisions around fossil fuel investments
Ajudicial challenge in the UK to a government decision to invest more than $1bn in Mozambique’s Cabo Delgado natural gas project has resulted in an unusual stalemate: one of the two judges upheld the investment decision, but the other found the approval was based on inadequate information about the climate change risks, and was therefore unreasonable.
According to UK legal experts, it’s the first time high court judges have given a split ruling in a constitutional matter.
It’s also the first case to consider the legal implications of a key provision of the 2015 Paris agreement on climate change: that government decisions on financing fossil fuel production should support sustainable development and poverty reduction by reducing greenhouse gas emissions.
The court heard that key government players were told the gas project would go ahead whether the UK contributed to it or not. The package, believed to be the largest ever offered by the UK government to a foreign fossil fuel project, is part of a larger $14.4bn financing and support package by several developed countries.
But UK involvement in the project has been controversial.
For example, in 2020, the then foreign secretary refused his support for the project on climate change grounds.
In his part of the judgment delivered last week, judge Jeremy Stuart-Smith said the government was “entitled to a significant margin of appreciation” in this case. It was the first to assess climate change in the context of a longterm foreign project, at a time when there was no established or internationally recognised methodology for doing so, he added.
This was a “novel exercise” in an area where there was “room for reasonable experts to disagree” and it was not the role of a court undertaking judicial review “to resolve conflicts in expert evidence”, said Stuart-Smith.
There will be “occasions when decisions are made on less than full or perfect information”, he said, and when that happens the court has to ask whether the deficiencies in information mean no rational decision can be made at all, or whether the decision-maker is justified in going ahead on the available information.
He concluded that “consistency” with the Paris agreement was not a requirement and that, as the matter essentially involved a policy judgment, the decision-maker was entitled to take a “less rigorously technical approach to climate change”.
It was “always recognised” that the impact of the project’s emissions would be “significant”. But Stuart-Smith said he didn’t understand what the Paris agreement means in practice “where the world is so far off meeting those targets that no country’s reductions could or would enable the temperature goals to be met”.
Set for an appeal
The second judge, Justine Thornton, repeated that the project would be a significant generator of greenhouse gases.
But she pointed out that several of the decision-makers approved backing for the project based on incomplete or inaccurate information, and were “not made aware of the scale of the gross global emissions”.
In her view, the government failed to make “reasonable and legally adequate inquiries” about a key issue in the decision-making process, and “the lack of information deprived ministers of a legally adequate understanding of the scale of the emissions impact from the project”.
The split decision means the legal challenge, brought by Friends of the Earth, did not succeed, but it will now go to the Court of Appeal. The group said the case raises questions about whether the UK can feasibly still support the project, given that a judge has “plainly said that its funding cannot rationally be considered compliant with the law”.
In the group’s view, the case shows that poor decisions “at the expense of our planet’s future [leave] the government increasingly vulnerable to climate litigation”.
This is the first time UK judges have given a split ruling in a constitutional matter