English Court of Appeal Dismisses Application for Judicial Review on Carbon Capture Project at Net Zero Teesside

Lieven J had dismissed Dr Boswell’s application at first instance ([2024] EWHC 2128), and the appeal against that decision was heard over two days in March 2025.

The NZT project involves the construction of a gas-fired power station equipped with post-combustion carbon capture technology. The captured CO₂ will be transported via pipeline and stored under the North Sea. The project will be the UK’s first full-chain capture and storage scheme and is a key part of the UK’s strategy to meet its 2050 net zero target.

In February 2024, the Secretary of State granted development consent for the project, acknowledging that it would result in significant greenhouse gas emissions (“GHG”). However, the Secretary of State concluded that the project’s benefits, including its potential contribution to the UK’s net zero objectives, outweighed these emissions.

Grounds for Judicial Review

Dr Boswell, who had previously raised concerns during the planning phase, pursued three grounds of appeal before the Court of Appeal:

Ground 1: Did the Secretary of State commit a legal error in assessing the significance of GHG emissions from NZT?

Dr Boswell argued that the Secretary of State must have assessed the significance of the environmental impacts of the GHG emissions from NZT in accordance with the Institute of Environmental Management and Assessment’s (“IEMA”) guidance entitled “Assessing Greenhouse Gas Emissions and Evaluating their Significance” (the “IEMA Guidance”). The IEMA Guidance is intended to assist ‘GHG practitioners’ with the assessment, mitigation and reporting of GHG emissions in Environmental Impact Assessments (“EIA”); it has not been adopted by the Secretary of State as policy guidance for decision making.

Dr Boswell alleged that if the Secretary of State used the IEMA Guidance there was an inconsistency between, on the one hand, the Secretary of State’s conclusion that the GHG emissions from NZT would amount to a “significant adverse effect” on the environment and, on the other, her conclusion that NZT would support or help deliver “the Government’s net zero commitment”.

The Court held that Ground 1 involved “an obvious misreading of the Examining Authority’s report and the Secretary of State’s decision letter” that was “wholly artificial”. Dr Boswell’s position required interpreting the decision letter as if the Secretary of State had applied section 6.3 of the IEMA Guidance to assess the significance of the environmental impacts of NZT (such that the project would necessarily be incompatible with the UK’s net zero trajectory per the rest of section 6.3). This was not the case. Rather, the Secretary of State had considered the significance of the environmental impacts of NZT by reference to the policies in National Policy Statement EN-1 (“NPS EN-1”).

The court rebuked Dr Boswell’s arguments, saying his approach was “a classic example of the misuse of judicial review in order to continue a campaign against a development … once a party has lost the argument on the planning merits.”

Ground 2: Did NPS EN-1 encapsulate the assessment of significance of GHG emissions for the purposes of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017 No. 572) (“the 2017 Regulations”), as well as the weight to be given to the assessment of significance as part of a planning balance exercise?

The court held it was entirely legitimate for the Secretary of State to draw upon national planning policy in the NPSs in forming her conclusions on the significance of GHG emissions, and to do so both for the purposes of EIA and for the purposes of the assessing the balance of factors relevant to granting development consent.

The court emphasised that it was “not open to Dr Boswell to use the present proceedings for the purpose of attacking policies in the NPSs themselves.” The court held that the question of whether emissions are significant for the purposes of the EIA legislation is a matter of judgment for the decision-maker. The court considered the Secretary of State had applied the relevant policies to the circumstances of the case “impeccably”.

Ground 3: Was the Secretary of State lawfully entitled to endorse the use of the IEMA Guidance for the purpose of assessing significance in the project’s Environmental Statement, while at the same time assessing significance in a different way, and/or did the Secretary of State give inadequate reasons for doing so?

Dr Boswell argued that the Secretary of State failed to comply with her obligation under regulation 21 of the 2017 Regulations to give a reasoned conclusion on the effect of GHG emissions from the project on the environment.

Dr Boswell contented that it was insufficient for the Secretary of State simply to describe the GHG emissions as having a “significant adverse effect”. Instead, she was obliged to evaluate the significance of that effect, if not by reference to the IEMA Guidance, then by comparison with a “benchmark” or by “contextualisation”.

The Court held that the government had made “lawful and properly reasoned conclusions” regarding the project’s potential GHG emissions. It said the evaluation and acceptability of the project’s estimated emissions was a “matter of fact and judgment for the decision-maker” and that the use of any benchmarking to assist in that evaluation was also a matter of judgment for the decision-maker. On the facts, the court held the Secretary of State gave legally adequate reasons and otherwise acted lawfully.

What does this decision mean for energy transition projects?

Judicial review remains an important remedy in holding government decision-makers to account. However, this decision is a further reminder that the English courts will not lightly interfere with an administrative decision. The Court of Appeal in this decision affirms that it will not open the floodgates to legal challenges driven by objections to government policy generally, rather than the improper exercise of decision-making powers which is the essence of judicial review.

More specifically, the case highlights the tension between individual project environment assessments and overarching national policies aimed at achieving net zero emissions. Assessing the environmental impact of a project remains complex, although the court’s decision emphasises that EIA legislation is principally aimed at improving environmental decision-making and not a yardstick by which to challenge new projects.

(R (Boswell) v. (1) Secretary of State for Energy Security and Net Zero (2) Net Zero Teesside Power Ltd. (3) Net Zero North Sea Storage Ltd [2025] EWCA Civ 669