Cornerstone Planning

Supreme Court to hear case on environmental impact assessments and downstream greenhouse gas emissions next week

The Supreme Court will next week (21-22 June) hear a case brought against Surrey County Council over whether the local authority acted unlawfully by not requiring an impact assessment of a proposed oil well's impact on downstream greenhouse gas (GHG) emissions before granting planning permission.

The claimant's lawyers have said the case is of importance to future decisions by planning authorities about applications to extract fossil fuels across England and Wales and centres on the correct interpretation of the Environmental Impact Assessment (EIA) Regulations 2017.

Surrey granted planning permission in 2019 that allowed the site owner to retain and expand its operation by drilling four new wells to produce hydrocarbons over a 20-year period.

But the claimant, Sarah Finch, says the council's environmental impact assessment should have considered the 'Scope 3' downstream greenhouse gas emissions of the crude oil to be extracted from the site.

Scope 3 emissions are emissions that a company is indirectly responsible for rather than those that it produces itself.

Finch's claim was dismissed by the High Court, which held that downstream emissions could not, as a matter of law, be an effect of the development for the purposes of an EIA.

The Court of Appeal then dismissed her appeal, finding that whether the downstream greenhouse gas emissions were or were not to be regarded as indirect effects of the project was a question of judgment for the council.

Finch is advancing four grounds at the Supreme Court, which argue that the Court of Appeal was wrong to:

  1. Hold that downstream GHG emissions were not indirect effects of the development.
  2. Hold that EIA is "project-centric" and exclude downstream GHG emissions from being indirect effects because the use of products generated by refinement of oil "was not part of the project".
  3. Find compliance with the EIA Regulations entirely a matter of "planning judgment" even if assessment of an indirect effect is wholly absent.
  4. Accept that downstream GHG emissions were a material consideration for the planning decision but were not indirect environmental effects.

Last month, the Office for Environmental Protection (OEP) intervened in the case by way of a written submission, arguing that the Court of Appeal's decision was wrong in law in categorising the question as one of fact and judgment only.

The regulator's submissions call upon the Supreme Court to use the appeal to clarify the law on assessing the indirect effects of developments in general and their 'scope 3' greenhouse gas emissions in particular.

Rowan Smith of Leigh Day Solicitors, who is representing Finch, said: "The Supreme Court will rule conclusively on whether or not the climate change impact of fossil fuel development in the UK must be taken into account before planning permissions are granted. There is a huge amount at stake for the future of the planet and the UK's ability to meet its carbon reduction targets."

Meanwhile, Katie de Kauwe, a lawyer at intervener Friends of the Earth, said the legal challenge "could ensure that the full climate impacts of new fossil fuel developments have to be taken into account in the environmental impact assessment when planning applications are considered. We're in a climate crisis and it's absurd that this is not happening already".

The case will be heard by a Supreme Court panel comprising Lord Kitchin, Lord Sales, Lord Leggatt, Lady Rose and Lord Richards.

Counsel in the case are: 

  • Appellant: Marc Willers KC (Garden Court Chambers) and Estelle Dehon KC and Ruchi Parekh (Cornerstone Barristers)
  • Respondent 1: Surrey CC – Harriet Townsend and Alex Williams (Cornerstone Barristers)
  • Respondent 2: Horse Hill Developers Ltd – David Elvin KC and Matthew Fraser (Landmark Chambers)
  • Respondent 3: SSLUHC – Richard Moules and Nicholas Grant (Landmark Chambers)
  • Intervenor 1: FoE – Paul Brown KC (Landmark Chambers) and Nina Pindham (Cornerstone Barristers)
  • Intervenor 2: Greenpeace – Ruth Crawford KC (Axiom Advocates), Richard Harwood KC (39 Essex Chambers) and David Welsh (Axiom Advocates)
  • Intervenor 3: Office for Environmental Protection – Stephen Tromans KC and Ruth Keating (both 39 Essex Chambers)
  • Intervenor 4: West Cumbria Mining Ltd – Greg Jones KC and Alexander Greaves (Francis Taylor Building)

Adam Carey