On 20 June the Supreme Court docket confirmed that Surrey County Council’s grant of planning permission to an oil developer was illegal as a result of it didn’t assess the downstream greenhouse fuel (GHG) emissions of the proposed growth of the Horse Hill oil effectively. The choice has garnered international consideration due to its probably important implications.
Sarah Finch introduced a judicial assessment of the council’s 2019 determination to grant planning permission to retain and develop an current oil effectively. The query for the Excessive Court docket was whether or not the environmental assertion describing the doubtless important results of the event, each direct and oblique (as required by the City and Nation Planning (Environmental Influence Evaluation) Laws 2017 (the EIA Laws)), ought to have prolonged to the evaluation of the GHG emissions ensuing from the top use of merchandise mentioned to originate from the event – the last word combustion of gasoline in automobiles which was derived from the crude oil extracted on website.
The Excessive Court docket dismissed the enchantment holding that, inter alia, ‘oblique results’ included much less speedy penalties however nonetheless needed to be results of the event itself. When oil left the location, it grew to become a part of a global market and future emissions couldn’t be attributed to anyone specific effectively or website. Due to this fact, the evaluation of GHG emissions from the long run combustion of refined oil merchandise mentioned to emanate from the event website was incapable of falling throughout the scope of environmental evaluation beneath the EIA Laws.
Finch sought permission to enchantment and on 17 February 2023 the Court docket of Attraction issued its judgment upholding the Excessive Court docket’s determination (with some disagreement of the Excessive Court docket’s rationale). The Court docket of Attraction held that consideration should be given to the diploma of connection between the event and its alleged results, and disagreed that the GHG emissions from future combustion of the refined oil merchandise have been, as a matter of legislation, incapable of falling throughout the scope of environmental evaluation. Slightly, the query of whether or not emissions of the oil extraction wanted to be assessed was certainly one of reality and evaluative judgement for the planning authority. Relevantly, in Moylan LJ’s dissenting judgment, he said that the environmental evaluation ought to have included an evaluation of downstream emissions because the inevitable influence of the extraction of oil for industrial functions and the council’s causes for excluding them have been legally flawed. Finch subsequently sought permission to enchantment to the Supreme Court docket.
In a 3:2 determination, the Supreme Court docket upheld the enchantment and made the next findings:
The downstream GHG emissions from the long run finish product, which might have a big influence on local weather, have been ‘inevitable’ ([79]).
The Court docket of Attraction’s view that whether or not emissions have been an ‘impact of the mission’ required an evaluative judgement of a adequate causal connection between the product and its eventual finish use was rejected on the premise that it might lead to differing views being reached by completely different authorities throughout the nation ([133]). Slightly, the query was certainly one of causation ([67]-[69]).
The EIA Laws require an evaluation of ‘doubtless’ results primarily based on proof ([72]-[75]). The court docket didn’t contemplate what is supposed by ‘doubtless’, as the consequences on local weather if the mission went forward have been ‘inevitable’. The estimated quantity of emissions was over 140,000 tonnes of CO₂ and couldn’t be dismissed as ‘negligible’ ([82]).
The specific reference to oblique results (alongside ‘secondary, cumulative, transboundary, short-term, medium-term and long-term, everlasting and short-term’ results) within the EIA Laws is ‘clearly supposed to emphasize the extensive causal attain of the required evaluation’ ([83]).
Reference was made to the European Fee’s Tips for the Evaluation of Oblique and Cumulative Impacts in addition to Influence Interactions, noting that these pointers appropriately state that if the quarrying of aggregates utilized in constructing a brand new street can be more likely to generate important GHG emissions, these emissions can be oblique results of the mission which should be assessed; the combustion emissions from oil shouldn’t be handled otherwise ([90]).
The EIA Laws don’t impose any geographical restrict on the scope of results to be assessed ([93]).
The requirement for an intermediate step to refine the crude oil just isn’t adequate to interrupt the causal connection between the extraction of the oil and its subsequent finish use ([102] and [118]).
Nationwide Planning Coverage Framework paragraph 194 (planning choices ought to assume different regimes (for instance, air pollution management) will function successfully) doesn’t justify limiting the scope of environmental evaluation ([108]). Within the current case, there was no different separate regime that could possibly be relied on to keep away from or cut back combustion emissions ([110]).
A key concern arising from this determination is whether or not it can open the floodgates to extra challenges (or current challenges being refined) on comparable grounds. The bulk judgment thought of these considerations ‘misplaced’, stating that many different uncooked supplies could have any variety of potential finish makes use of (for instance, metal), such that it could be unimaginable to determine any ‘doubtless’ downstream results or to make a significant evaluation of these ([119]-[123]). Notably, Lord Gross sales’ dissenting judgment disagreed with this place.
The dissenting judgment is sort of so long as the bulk judgment and we anticipate continued litigation on this space whereas the precise scope and implication of the judgment are decided. Within the meantime, as a matter of apply, any developer in search of to scope out specific downstream results might want to present sturdy reasoning for doing so.
Rachael Davidson is an environmental lawyer at Charles Russell Speechlys
