Supreme Court issues landmark judgment on the scope of Environmental Impact Assessments in R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council and others

Summary

The UK Supreme Court recently delivered a landmark judgment in a case involving the scope of Environmental Impact Assessments (“EIAs”). The Supreme Court gave its judgment as to whether downstream greenhouse gas emissions need to be considered and assessed in the EIA. In quashing the Council’s grant of planning permission, the Court decided that a development to extract oil had to assess the downstream emissions that would be released when the oil was used as this was an indirect effect of the project.

Legal Update

The Council had determined the planning application on the basis of the applicant’s approach in the Environmental Statement that the EIA only had to assess the emissions produced directly at the oil well site during the project’s execution and the downstream emissions produced when burning the oil were not “direct or indirect… effects of the project” under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (EIA Regulations) and the European Union Directive 92/11/EU (Directive).

On 20 June 2024, the Supreme Court, by a majority of 3 to 2, quashed the grant of planning permission.

The key conclusions were as follows:

• The downstream emissions of combusting the oil were an indirect effect of the development to extract the oil under the EIA Regulations and Directive.
• The EIA Directive does not set any geographical boundaries on the extent of a project’s environmental effects that need to be evaluated. Hence, the Council was wrong in limiting the EIA to only the emissions anticipated to happen at the project site.
• The Court distinguished, for example, the production of steel and its eventual use in greenhouse gas emitted by motor vehicles or aircrafts from the current facts. Raw materials such as steel can be put to many possible uses, and the view might reasonably be taken that no meaningful assessment or estimate can be made of what emissions will ultimately result from its use. Oil is a different commodity. This is because the process of refining crude oil does not change its fundamental nature and its intended use is inevitable.
• However, a key point to note in the case is that the Court, noting that the “criterion must also govern, where a possible effect is regarded as “likely”, the nature and extent of the assessment of the effect”, went on to say that in this particular case “It is not necessary to consider what is meant by “likely” because it is an agreed fact that, if the project goes ahead, this chain of events and the resulting effects on climate are not merely likely but inevitable.”

Our View

The case was only addressed by the Court on the inevitably of combusting the oil and the resulting emissions released because the parties had agreed they were the facts in this instance. The EIA Regulations and Directive are based on “likely” significant environmental effects and not “inevitability”. Therefore, it may be enough in other cases that the effects are “likely”. It is foreseeable that there will be further cases on this issue regarding how far the principles of the case extend.

Developers and Planning Authorities will now have to consider the broader implication of their projects and decisions on greenhouse gas emissions and climate change when carrying out an EIA.