In R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council, the central issue was the correct application of the Environmental Impact Assessment (EIA) process in assessing the ‘downstream’ greenhouse gas emissions from new oil development.
In December 2018, Horse Hill Developments Ltd sought planning permission from Surrey County Council (SCC) to retain and expand an existing onshore oil well site and drill four new wells for hydrocarbon production over 25 years. The EIA for the project considered direct greenhouse gas emissions within the well site boundary but did not assess downstream emissions from refined oil products.
The key question was whether it was unlawful for a planning authority not to require the EIA for a project of crude oil extraction for commercial purposes to include an assessment of the impacts of greenhouse gas emissions resulting from the eventual use of the refined products of that oil as fuel as well as a challenge to national planning policy on the ground that it is not in conformity with EU law.
The claimant applied for judicial review of the Council’s decision. She argued that the failure to consider downstream emissions breached the UK’s obligations under EU law (Directive 2011/92/EU, the EIA Directive) as implemented domestically by the EIA Regulations. They contended that either SCC had misinterpreted the relevant national regulations in determining that the consumption-based emissions could be excluded from the assessment, or that the relevant regulations were unlawful because they were in conflict with the EIA Directive. They also argued that the consumption emissions from the project should have been considered in relation to the UK’s net zero target.
Permission was granted for a judicial review and a challenge to national planning policy. The claim then proceeded to the High Court.
The case was dismissed by the High Court on the basis that “the assessment of GHG emissions from the future combustion of refined oil products...was, as a matter of law, incapable of falling within the scope to the EIA required by the 2017 Regulations for the planning application.” The case was subsequently appealed.
At the hearing, the Appellant argued that the High Court had taken an overly narrow interpretation of the EIA regime which was not aligned with established national and EU case law precedent. Furthermore, that there was an imbalance between the weight afforded by the decision-maker to the benefits that the use of the extracted oil would bring, and the lack of consideration of the climate impacts of this usage. It was advanced that the climate impact resulting from the end-use consumption of the oil extracted must be considered under the EIA regime. Additionally, it was argued that the Council’s reasons and consequent decision to exclude the end-use emissions from the EIA were inconsistent and legally flawed. The Appellant argued further that it is feasible to measure scope 3 emissions whilst still ensuring that the EIA regime is achievable in practice.
The Court of Appeal held that the Council’s decision to grant planning permission for commercial oil extraction at Horse Hill was lawful. In disagreement with Holgate, it was ruled that it is not possible to say that such impacts are legally incapable of being an effect requiring assessment in an EIA. Instead, all three judges agreed that the question of whether any particular impact, including the impact in this case, is truly a “likely significant effect” of the proposed development – be it a “direct” or “indirect” effect – is ultimately a matter of fact and evaluative judgment for the authority.
In determining the “direct” or “indirect” effects, what needs to be considered is the necessary degree of connection that is required between the development and its putative effects. The relevant “project” is the construction and use of a working well site for the commercial extraction of crude oil for onward transport to refineries. It was then a matter of fact and evaluative judgment for the mineral planning authority to determine whether the impacts arising from the GHG emissions arising from the eventual use of the refined products of that oil as fuel constituted “indirect” effects of the project.
The Court of Appeal majority found the county council’s reasons for not requiring the EIA to assess the end-use GHG emissions to be lawful. An “elaborate explanation” was not required, and it was common ground that there was no duty on the authority to give reasons for a decision on the adequacy of an EIA. Taking a straightforward approach, the Senior President that the county council had provided “terse” but legally adequate reasons, and Lewison LJ concluded “(not without hesitation) that the reasons just about pass muster”. Moylan LJ did not disagree with the majority on the points of law but in his assessment of the adequacy of the reasons given by the Council, which he regarded as legally flawed.
The appellant appealed to the Supreme Court which affirmed the Court of Appeal’s decision.
"In my view, there was no basis on which the council could reasonably decide that it was not necessary to assess the combustion emissions."
"Given the agreed fact that all the oil produced would be refined, I see no reason why environmental impacts resulting from the process of refining oil should not in principle fall within the scope of the EIA for the extracting of oil."
Justice Leggatt added: "It is not disputed that these emissions, which can easily be quantified, will have a significant impact on climate. The only issue is whether the combustion emissions are effects of the project at all. It seems plain to me that they are."
As a result of the ruling, all those proposing new oil projects will likely have to take downstream emissions into consideration when preparing their EIA. In the case of Surrey oil drilling project, Friends of the Earth has estimated that burning the oil that could have potentially been extracted would have released over 10 million tonnes of carbon dioxide.
This ruling ends a five year campaign run by Ms Finch on behalf of local residents, which was supported by Greenpeace and Friends of the Earth.
