1. Introduction

Energy infrastructure projects—such as power plants, transmission lines, substations, pipelines, LNG facilities, offshore wind farms, solar parks, hydroelectric projects, battery-storage facilities and electricity interconnectors—usually require multiple statutory approvals. These may involve planning permission, environmental clearance, land-use approval, electricity licences, construction consent, compulsory acquisition, forest or wildlife clearance, and regulatory authorisations.

Because such projects can affect property rights, environmental interests, public health, energy security and large public investments, affected persons may challenge governmental or regulatory approvals through judicial review.

Judicial review does not ordinarily allow a court to substitute its own view of whether an energy project is desirable. Its principal purpose is to examine whether the competent authority:

acted within its statutory powers;

followed the required procedure;

considered mandatory and relevant factors;

ignored irrelevant considerations;

complied with environmental and planning requirements;

acted fairly and rationally; and

gave legally adequate reasons where required.

This distinction between review of legality and review of merits is fundamental to energy-infrastructure litigation.

2. Nature of Energy Infrastructure Approvals

Energy projects normally involve decisions by several institutions. For example:

an environmental authority may grant environmental clearance;

a planning authority may approve the site;

an electricity regulator may issue a licence;

a government department may approve construction;

a land authority may authorise acquisition;

a specialist body may approve forest or wildlife impacts;

a system operator may approve grid connection.

In the United Kingdom, for example, major energy infrastructure can be authorised through Development Consent Orders (DCOs) under the Planning Act 2008, while electricity projects may also involve consents under the Electricity Act 1989. The UK Government's energy-infrastructure decision system expressly covers DCOs, section 36 electricity consents, section 37 overhead-line applications and compulsory-purchase orders. (GOV.UK)

Judicial review therefore frequently concerns not merely the final approval but also the decision-making process leading to it.

3. Grounds of Judicial Review

A. Illegality or Excess of Jurisdiction

The first question is whether the authority had legal power to grant the approval.

An approval can be invalid where:

the authority lacks statutory jurisdiction;

the wrong statutory provision is used;

a mandatory statutory precondition has not been satisfied;

the authority misunderstands the scope of its powers; or

a decision is made by the wrong body.

For energy projects, this can be particularly important because environmental and planning statutes frequently require prior approval before construction begins.

Indian position

Indian environmental law provides a strong example. The Supreme Court has repeatedly emphasised that where prior environmental clearance is legally required, the statutory requirement cannot simply be treated as an administrative formality.

The Supreme Court's environmental jurisprudence has also recently addressed the limits of retrospective environmental regularisation. In 2026, the Court struck down the Centre's 2021 Office Memorandum permitting broad retrospective regularisation of projects that had commenced without the required environmental clearance, while recognising limited statutory possibilities for government action. (The Indian Express)

The principle is particularly significant for energy infrastructure: construction cannot ordinarily be validated merely because a project is economically important after the statutory approval requirement has been breached.

4. Procedural Impropriety

Energy infrastructure legislation frequently prescribes procedures involving:

public consultation;

environmental impact assessment;

publication of applications;

hearing of objections;

expert assessment;

disclosure of environmental information;

consultation with affected authorities;

consideration of alternatives.

Failure to comply with a mandatory procedural requirement may make an approval vulnerable to judicial review.

The court therefore asks whether the statutory procedure was actually followed rather than merely whether the authority eventually reached a plausible conclusion.

5. Environmental Impact Assessment

Environmental impact assessment is one of the most important areas of judicial review of energy infrastructure.

Large energy projects can generate:

greenhouse-gas emissions;

air pollution;

water consumption;

groundwater impacts;

biodiversity loss;

habitat fragmentation;

noise;

landscape impacts;

waste;

risks to coastal and marine ecosystems.

Courts therefore examine whether the environmental assessment adequately addressed the legally relevant environmental consequences.

R (Finch) v Surrey County Council

A particularly important UK Supreme Court decision is R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council [2024] UKSC 20.

The case concerned planning permission for oil extraction. The challenge argued that the environmental assessment should have considered the greenhouse-gas emissions resulting from the eventual combustion of the oil produced.

The Supreme Court proceedings specifically concerned whether the EIA obligations required consideration of these downstream combustion emissions. (Supreme Court UK)

The case demonstrates an important principle:

Judicial review can examine whether an environmental assessment has considered the consequences that the governing legislation legally requires decision-makers to assess.

The court is not simply deciding whether climate change is important. It determines the legal scope of the environmental assessment obligation.

6. Relevant and Irrelevant Considerations

A decision-maker must generally take account of factors which Parliament has required it to consider.

Conversely, it must not give decisive weight to matters which are legally irrelevant.

R (Wright) v Forest of Dean District Council

In R (Wright) v Resilient Energy Severndale Ltd [2019] UKSC 53, a planning permission for a wind turbine was challenged because the council had taken account of a proposal to provide financial benefits to the local community.

The Supreme Court considered whether that community-benefit proposal was a legally relevant planning consideration. (Supreme Court UK)

The case illustrates a critical judicial-review principle:

A planning authority cannot treat every attractive feature of an energy project as legally relevant merely because it considers the feature beneficial.

The relevance of a consideration depends upon the applicable statutory planning framework.

7. Rationality and Irrationality

An energy-infrastructure approval can also be challenged where the decision is legally irrational or unreasonable.

However, courts traditionally apply a high threshold where the decision involves:

technical expertise;

economic assessment;

engineering judgments;

environmental modelling;

energy-system planning;

risk assessment.

The court generally asks whether the decision falls within the range of decisions legally available to the decision-maker rather than deciding which technical option it would have preferred.

This principle is especially important for energy regulators and planning authorities because courts do not normally possess the same technical expertise as specialist institutions.

8. Judicial Deference to Specialist Decision-Makers

Judicial review of energy infrastructure therefore involves a tension between two principles:

First: courts must ensure legality.

Second: courts generally respect legitimate technical and policy judgments entrusted to specialist authorities.

The modern approach is not simply unlimited deference. The intensity of review depends on the nature of the decision and the statutory framework.

For example, an authority's interpretation of a statutory requirement may receive less deference than its technical prediction concerning electricity demand or engineering risk.

The distinction can be expressed as:

Legal question → stronger judicial supervision

Technical/policy judgment within lawful authority → greater institutional restraint

9. Climate Change as a Judicial Review Issue

Climate change has increasingly become relevant to infrastructure approval litigation.

Courts may examine whether decision-makers have properly addressed:

statutory climate obligations;

greenhouse-gas emissions;

carbon budgets;

climate-policy requirements;

environmental assessment obligations;

cumulative impacts.

However, courts do not automatically invalidate projects simply because they contribute to emissions.

The legal question is generally whether the decision-maker properly applied the applicable statutory framework.

Australia: Denman Aberdeen v MACH Energy

In Denman Aberdeen Muswellbrook Scone Healthy Environment Group Inc v MACH Energy Australia Pty Ltd [2025] NSWCA 163, the NSW Court of Appeal considered a challenge to approval of an optimisation of the Mount Pleasant coal mine.

The court held that the decision-maker had considered some mandatory issues concerning Scope 3 emissions but had failed adequately to consider the project's environmental impact on the locality from climate change as required by the applicable statutory framework. The matter was remitted. (Supreme Court of NSW)

This demonstrates that climate-related judicial review can operate through mandatory-consideration requirements, rather than through a court imposing its own climate policy.

10. Precautionary Principle

Energy projects frequently involve scientific uncertainty.

Examples include:

groundwater contamination;

methane leakage;

nuclear risks;

offshore ecological effects;

battery-fire risks;

geological impacts of extraction;

long-term climate effects.

Where legislation incorporates the precautionary principle, a court may examine whether the decision-maker actually considered it.

Barrington-Gloucester-Stroud Preservation Alliance v Minister

In Barrington-Gloucester-Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure [2012] NSWLEC 197, a challenge was brought against approval of aspects of the Gloucester Gas Project, including arguments concerning groundwater uncertainty and the precautionary principle.

The court ultimately upheld the approval, finding that the precautionary principle had been sufficiently considered within the applicable statutory framework. (Global Judicial Portal)

The lesson is important: judicial review asks whether the legally required principle was considered according to law; it does not automatically require the court to adopt the most precautionary outcome.

11. Public Participation and Procedural Fairness

Energy infrastructure projects can affect:

landowners;

indigenous communities;

neighbouring residents;

farmers;

environmental groups;

local authorities;

electricity consumers.

Where legislation requires consultation or hearing of objections, failure to provide the legally required opportunity to participate can constitute procedural unlawfulness.

However, the precise requirements depend on the statute. Not every consultation is legally equivalent, and not every procedural defect necessarily produces the same remedy.

The court must therefore determine:

Was consultation legally required?

What information had to be provided?

Who had to be consulted?

Was there a genuine opportunity to respond?

Did the decision-maker consider the representations?

12. Compulsory Acquisition and Energy Infrastructure

Transmission lines, pipelines, substations and renewable-energy projects often require land.

Judicial review can therefore intersect with compulsory acquisition.

Typical grounds include:

lack of statutory authority;

failure to follow acquisition procedures;

improper consideration of alternatives;

inadequate public-interest assessment;

procedural unfairness;

disproportionate interference with property rights.

The existence of a public-interest objective does not eliminate the requirement to comply with statutory safeguards.

13. UK Development Consent Orders

The UK DCO regime is particularly important for nationally significant energy infrastructure.

Projects may include:

generating stations;

electricity transmission infrastructure;

offshore wind infrastructure;

gas pipelines;

large energy-storage infrastructure.

The Secretary of State's decision may be challenged through statutory judicial-review mechanisms.

The court generally does not conduct a fresh planning inquiry. Instead, it examines whether the decision complied with the Planning Act 2008 and related environmental and procedural requirements.

The UK Government's current framework expressly identifies DCO decisions, material changes, environmental assessment decisions and compulsory-purchase orders among energy-infrastructure decisions subject to the statutory system. (GOV.UK)

14. United States: NEPA and Energy Infrastructure

The United States provides another important model.

Under the National Environmental Policy Act (NEPA), federal agencies must assess environmental consequences for qualifying federal actions.

Judicial review generally asks whether the agency complied with the statutory environmental-review process.

Seven County Infrastructure Coalition v Eagle County

In Seven County Infrastructure Coalition v Eagle County, 605 U.S. ___ (2025), the US Supreme Court considered environmental review of an 88-mile railway project connected with oil production.

The Supreme Court reversed the lower court's decision, emphasising substantial judicial deference in NEPA cases and holding that NEPA required consideration of the environmental effects of the project under review rather than every separate upstream or downstream project. (Legal Information Institute)

This case is particularly useful for energy-infrastructure law because it demonstrates the boundary between:

legitimate environmental review

and

judicial expansion of the environmental-review scope beyond the statutory project.

15. India: Environmental and Energy Infrastructure Litigation

Indian courts have developed extensive jurisprudence concerning infrastructure projects through:

Articles 32 and 226 of the Constitution;

environmental legislation;

the Environment (Protection) Act, 1986;

EIA Notification, 2006;

Forest (Conservation) legislation;

Wildlife Protection legislation;

principles of sustainable development;

precautionary principle;

public trust doctrine;

intergenerational equity.

The Supreme Court has repeatedly treated environmental decision-making as subject to judicial scrutiny while recognising that courts should not simply substitute their own technical assessment for that of specialised authorities.

A recent Supreme Court judgment concerning an airport project reiterated the statutory importance of prior environmental clearance under the 2006 EIA Notification. The Court noted that the notification requires prior environmental clearance before construction or preparation of land, subject to its terms. (Sci API)

16. Sustainable Development

Energy infrastructure litigation often requires reconciliation between:

economic development + energy security + environmental protection + social interests.

The principle of sustainable development does not necessarily mean that every environmentally controversial project must be rejected.

Instead, judicial review may ask:

Did the authority identify environmental consequences?

Did it consider mitigation?

Were statutory environmental conditions imposed?

Was the decision based on adequate information?

Did the authority balance legally relevant interests?

The Supreme Court of India has recently reiterated that decisions concerning natural-resource utilisation should ordinarily be tested through recognised judicial-review principles, including whether relevant factors were considered, irrelevant considerations excluded, statutory policy followed, and sustainable development properly taken into account. (Indian Kanoon)

17. Standard of Review in Energy Infrastructure Cases

The principal grounds can be summarised as follows:

18. Remedies

Where an energy-infrastructure approval is unlawful, courts may grant several remedies.

1. Quashing order

The approval is set aside.

2. Declaration

The court declares the legal position without necessarily cancelling the entire project.

3. Remittal

The matter is sent back to the competent authority for reconsideration.

This was the approach in the Australian Denman Aberdeen litigation, where the matter was remitted after the court identified an error concerning mandatory environmental considerations. (Supreme Court of NSW)

4. Prohibitory or mandatory relief

A court may prevent unlawful action or require performance of a legal duty.

5. Interim injunction/stay

Construction may sometimes be temporarily suspended while the legality of an approval is determined.

The availability and precise form of these remedies depend on the jurisdiction and applicable legislation.

19. Limits of Judicial Review

Judicial review has important boundaries.

Courts ordinarily should not:

redesign an electricity network;

determine the optimal location of a transmission line;

select the best turbine technology;

determine electricity demand forecasts themselves;

replace environmental experts with judicial expertise;

make national energy policy;

substitute their preferred economic assessment for that of the statutory authority.

The court's institutional role is principally to ensure that the decision was made lawfully.

The distinction is particularly clear in the US Supreme Court's recent Seven County decision, which stressed substantial judicial deference in NEPA review. (Legal Information Institute)

20. Key Case Laws

21. Conclusion

Judicial review of energy infrastructure approvals performs a constitutional and administrative-law control function. Energy projects may be economically significant and strategically important, but their importance does not exempt decision-makers from statutory requirements.

The central judicial questions are generally:

Was the authority legally empowered to approve the project?

Did it follow the prescribed procedure?

Did it properly conduct the required environmental assessment?

Did it consider mandatory and relevant factors?

Did it avoid irrelevant considerations and legal errors?

Was the decision rational and adequately reasoned?

Modern energy litigation increasingly adds climate change, biodiversity, environmental justice and sustainable development to these questions. Finch, Denman Aberdeen, Seven County and Indian environmental-clearance jurisprudence illustrate different ways courts balance environmental scrutiny with institutional competence and respect for statutory decision-making. (Supreme Court UK)

Thus, judicial review is neither a mechanism for automatically stopping controversial energy projects nor a rubber stamp for administrative approvals. It is principally a mechanism for ensuring that energy infrastructure is authorised through a lawful, procedurally fair, properly informed and legally rational decision-making process.