UKSC 2022/0064 R (on the application of Finch on behalf of the Weald Action Group) (Appellant) v Surrey County Council and others (Respondents)
Under Directive 2011/92 EU of the European Parliament and of the Council and the Town and Country Planning (Environmental Impact Assessment) Regulations 2017, was it unlawful for the Council not to require the environmental impact assessment for a project of crude oil extraction for commercial purposes to include an assessment of the impacts of downstream greenhouse gas emissions resulting from the eventual use of the refined products of the extracted oil?
Hearing on 21 June 2023
The case raises similar issues on scope 3 emissions to that in Greenpeace Ltd v (1) Secretary of State for Business, Energy and Industrial Strategy and (2) the Oil and Gas Authority; and Uplift v (1) SSBEIS and (2) the OGA (North Sea oil and gas licensing)
On 26 April 2023 permission was granted to proceed with a Judicial Review of the Government’s decision to launch a new licensing oil and gas round, without taking into account the environmental effects of consuming the oil and gas to be extracted. In the new licensing round fossil fuel companies have submitted submitting more than 100 licences to explore for new oil and gas.
UKSC 2021/0231 Priminds Shipping (HK) Co Ltd (Respondent) v K Line PTE Ltd (Appellant)The Eternal Bliss
Whether the Charterers are liable to compensate or indemnify the Owners for the cost of settling the cargo claim by way of (a) damages for the Charterers’ breach of contract in not completing discharge within the permitted laytime; and/or (b) an indemnity in respect of the consequences of complying with the Charterers’ orders to load, carry and discharge the cargo.
The answer given by the Court of Appeal was ‘no’. This is now definitive.
Today the EU Commission has issued a 581 page document with a proposed directive amending the 2003 ETS Directive. This is considerably less extensive that the proposed amendment to the 2015 MRV Regulation which is what the EU Parliament voted for last October.
Maritime transport will now fall within the Directive (inserted articles 3g to 3ge) which will apply in respect of: emissions from intra-EU voyages; half of the emissions from extra-EU voyages and; emissions occurring at berth in an EU port. This rows back from the Parliament’s proposed amendments to the 2015 MRV Regulation which would have included all emissions from extra-EU voyages which started from or ended within the EU. The same rules that apply to other sectors covered by the EU ETS should apply to maritime transport with regard to auctioning, the transfer, surrender and cancellation of allowances, penalties and registries (Article 16). Shipping will enjoy phased entry into the ETS. Shipping companies shall be liable to surrender allowances according to the following schedule: (a) 20 % of verified emissions reported for 2023; (b) 45 % of verified emissions reported for 2024; (c) 70 % of verified emissions reported for 2025; (d) 100 % of verified emissions reported for 2026 and each year thereafter: somewhat different from the inclusion in the ETS as of 1.1.2022 proposed by the EU Parliament. The current MRV Regulation applies only to CO2 emissions and the Commission leaves extension to other gases to a later phase, once the monitoring approaches and emissions factors of these gases has been agreed.
The proposed amending directive includes new definitions for “shipping company” and “administering authority in respect of shipping companies” in Article 3(v) and Article 3(w) respectively. The person or organisation responsible for the compliance with the EU ETS should be the shipping company, defined as the shipowner or any other organisation or person, such as the manager or the bareboat charterer, that has assumed the responsibility for the operation of the ship from the shipowner and that, on assuming such responsibility, has agreed to take over all the duties and responsibilities imposed by the International Management Code for the Safe Operation of Ships and for Pollution Prevention. This definition is based on the definition of ‘company’ in Article 3, point (d) of Regulation (EU) 2015/757, and in line with the global data collection system established in 2016 by the IMO. This is good news for time charterers who would have become responsible under the Parliament’s proposed amendment to the MRV Regulation.
Still, half a loaf is better than what is currently being served up by the IMO on its GHG reduction menu for international shipping.
The oil and gas industry is rarely unremarkable, but over the past two weeks there have been several events of note, including:
Biden renewing Chevron’s special license. The licence exempts the oil giant from the 2019 US imposed sanctions barring imports of Venezuelan oil and US dollar transactions made with PDVSA (Venezuela’s state oil company), essentially extending the time Chevron has to wind down its operations there to 01 December 2021.
ExxonMobil relinquishing its entire 80% stake in its deepwater oil prospect off the coast of Ghana (Deepwater Cape Three Points), leaving the venture’s two other participants (Ghana National Petroleum Corp. and Ghana Oil Co.) to search for a new operator. Meanwhile, on the other side of the planet, ExxonMobil is developing the offshore Bacalhau oilfield in Brazil with Norway’s Equinor acting as operator (each hold a 40% participating interest, with state-owned Petrobas taking the remaining 20%). They’re set to make a US$ 8 billion investment for phase one.
ExxonMobil’s other news, however, made larger headlines when, in a surprising twist, a small group of investors won three seats on its board of twelve directors. What makes this move so unusual is not – as one would expect – the fact that the investors, named Engine No. 1, are an environmental activist hedge fund established less than a year ago, but rather their success in securing these seats when they invested so little (a mere US$ 54 million, which is an absolute miniscule 0.02% stake). But how did this happen? And what exactly does this mean for the oil giant’s future?
As for the how, blame is being placed at CEO Darren Woods’ door: ExxonMobil losing US$ 25 billion last year to covid-19 is a big reason, especially since this was the company’s first loss since 1998. Even though they weren’t the only ones to suffer these kinds of figures, their shareholders were angry, including several large pension funds, advisory services and fund managers who ended up supporting the nominations. Compounding on this is the direction the company has chosen to follow in recent years. Instead of embracing the renewables trend, as its competitors have, its focus has remained staunchly on growing its ‘core competencies’ (i.e. its oil and gas business). While it is true that investment in renewable energies cannot match the current rates of return provided by fossil fuels, in taking this stance ExxonMobil has portrayed itself as stubbornly antiquated, quickly losing value and acting out of step with other global companies. Engine No. 1 took advantage, putting forward four very credible candidates with vast experience in the industry (the three successful ones were an oil refining exec, a biofuels programme exec and an energy dept. official), who offered detailed analysis (80 pages’ worth) blaming the company’s climate approach for their losses. It’s what the shareholders wanted to hear: the nominees were presenting them with a new direction of travel, a call for ExxonMobil to recognise that energy transition is a serious and unavoidable issue which must be addressed and planned for if the company is to survive, let alone thrive.
What does this mean?
As for how this will affect ExxonMobil, stocks have recovered as the world has begun to get back on its feet, but if they want stability over the long run, they’ll need to keep up with the times and diversify their options. The new directors only take up a quarter of the board, so they will be in a minority, and how pivotal a role they’ll play will depend on what committees they’ll infiltrate and what alliances they form among the other directors. As for their overall strategy for ExxonMobil and how environmentally conscious they actually aim to be, we might not have any certainties yet, but it’s worth remembering that Engine No. 1 is a hedge fund, not an environmental charity. Its main aim is to make a profit on its investment and climate change is factored into their planning because they view it as a real and serious business risk.
If nothing else, the very reason for Engine No. 1’s successful nominations and the events which led up to them suggests that the company will take a good look at its current ethos. Already under pressure at home from a number of lawsuits filed in several US states, and by the environmental pledges its competitors were making, last year ExxonMobil had announced prior to the shareholder’s annual meeting that they would be spending US$ 3 billion over the next half decade on a new ‘low carbon business unit’, which aims to cut the intensity of its CO2 emissions from its upstream production by 20% and the intensity of its more devastating methane emissions by 50%.
A smoke and mirror promise? How does it compare to others?
Their promises, however, fall far short of what many of the European major players have committed to: prompted by the Paris Agreement 2016 and the Greenhouse Gas Protocol (GHG Protocol), in early 2020 BP announced its pledge to achieve net-zero GHG emissions by 2050, forcing the metaphorical hands of both Royal Dutch Shell and Total to do the same.
These pledges do have some issues: none of them actually pledge to cut emissions directly – the most effective way of meeting their ‘net zero’ targets. Rather the goal is often to reduce ‘intensity’ and to offset production. And almost none of the companies’ pledges include scope 3 emissions.
Plans for offsetting emissions is dubious in and of itself, in that capture technology is not yet equipped to meet the requirements of the more ambitious pledges and the scale of reforestation is… questionable at best. The other problem, of course, is that offsetting and capturing doesn’t mean that fossil fuel emissions will necessarily be reduced – it is entirely possible for them to increase so long as they outsell them with renewable fuels.
As for scope 3 emissions, these are the most difficult to measure since they originate from assets not owned or controlled by the oil companies but that the organisation indirectly impacts in its value chain (e.g. transportation and distribution). BP did include such emissions in its pledge but deliberately excluded the scope 3 emissions coming from its stake in the Russian Rosneft, which accounts for nearly half of its total oil production. It’s still better than ExxonMobil’s pledge, which doesn’t include scope 3 emissions at all.
Even with their many loopholes, European big oil’s promises are far and above those offered by their American equivalents. Engine No. 1’s directors are in a prime position to move ExxonMobil forward in a way that will help them avoid what’s happened to Shell – more on that on the next blog post – but it’s a difficult path to navigate, involving steep changes and an about turn in direction for the mighty oil giant. One suspects, however, that the reason for the election of the new board members, combined with external pressures (international policy making and increasingly environmentally conscious state governments) and internal demands (shareholders and investors) will provide the company with sufficient motivation to make substantial change.