UK judicial review ends with future of the Atlantic Frontier in balance

Greenpeace will have to wait up to three weeks to find out whether its attempt to sue the UK Government for failing to apply the EC Habitats Directive in the North East Atlantic has been successful

Greenpeace had argued in the High Court that the UK Government had breached the EC Habitats Directive by licensing oil and gas exploration to go ahead in the region known as the Atlantic Frontier without first introducing conservation measures to protect marine life in the area.

In addition, Greenpeace argued that Government guidelines to protect whales and dolphins from the impact of seismic testing fail to meet the requirements of the Directive.

The EC Habitats Directive is currently applied by the UK Government within 12 nautical miles of the coast. Meanwhile, the Government claims exclusive rights to gas and oil reserves discovered up to 200 nautical miles from the coast.

During the 4-day hearing, the Government admitted in court that whales and dolphins may be harmed by oil development. They also admitted that if Greenpeace were successful they may have to take remedies to protect the offshore environment. Such measures could evidently make a big difference to offshore oil and gas exploration.

“If the Habitats Directive is applied offshore, all future oil licensing will be illegal until the government implements it,” Rob Gueterbock, Greenpeace’s energy campaigner told edie. “So it is likely there will be some delay in oil licensing if Greenpeace is successful, although it’s not clear how long that delay will be. But it could take the Government anything up to two years to gather the information needed to implement the Habitats Directive. The Government has also said there could be considerable effects on investments in the Atlantic Frontier area and that oil companies may question whether to invest in the area.”

Meanwhile, it has emerged that the QC representing the 10 oil companies who leant their support to the Government’s case asked the judge to refer the case to the European Court of Justice if he found in Greenpeace’s favour on certain matters.

This could be good news for Greenpeace, who in November 1998 received a letter from the European Commission saying that, in its legal opinion, the Habitats Directive should be applied up to 200 miles from the coast if a member state also claimed exclusive economic rights in the same area. “We believe we would have a good chance if it got to Europe,” Gueterbock told edie.

According to Greenpeace, the Government’s case mainly focussed on technical arguments – in particular that Greenpeace delayed in applying for a judicial review of oil licensing on the Atlantic Frontier and should have made its application some time over the last five years.

“If the judge agrees with the technical objections put forward by the government, it would be a tragedy for the environment. It would lock Greenpeace and any other organisation out of court,” Gueterbock said.

Greenpeace believes that the Government has failed to give adequate answers to its evidence concerning the risks to whales, dolphins and cold water coral from oil exploration.

“There is a tension in what the Government is saying – on the one hand they are saying they are already doing enough to prevent damage to marine wildlife, and on the other they are saying that implementation of the Habitats Directive could destroy offshore oil and gas exploration,” he said.

Nigel Pleming QC, summing up for Greenpeace said, “this case is not, as the Government suggests about ‘headaches for whales’ but about real risks to endangered species and habitats that have been singled out for protection by the European Commission.”

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