Landmark climate judgment: R (Finch on behalf of the Weald Action Group & Others) v. Surrey County Council (& Others)

A recent judgment by the Supreme Court has been hailed as groundbreaking by climate campaigners, fighting for recognition of the true environmental impacts of fossil fuel projects in the UK. The much-awaited decision held that the decision of Surrey County Council (the “Council”) to grant planning permission for an oil production project was unlawful. This was because the environmental impact assessment (“EIA”) considered by the Council when deciding whether to grant permission did not assess emissions that would arise from the eventual combustion of the oil (the “Combustion Emissions”, often referred to as downstream or “scope 3” emissions) and the reasons for disregarding the Combustion Emissions were flawed.

Background

The case goes back to 2019, when the Council granted Horse Hill Developments Limited (“HHDL”) planning permission to significantly expand an existing crude oil extraction project (the “Decision”). In the EIA submitted as part of its application, HHDL assessed the direct releases of greenhouse gases from within the well site caused by the site’s construction, production, decommission and restoration (known as “scope 1” emissions). However, the EIA did not assess the Combustion Emissions. It is not possible to say at this stage where the refining and / or combustion of the oil extracted from this project would take place but it was accepted that it was “inevitable” that the oil would be refined and eventually undergo combustion. Local resident and campaigner Sarah Finch (the “Claimant”) brought a judicial review of the Decision, arguing that the failure to consider the Combustion Emissions placed the Council in breach of obligations under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (the “Regulations”) and an EU Directive (the “Directive”) which seeks to ensure that environmental considerations are integrated into the authorisation of projects.

The High Court dismissed the judicial review in 2020, stating that “the assessment of [greenhouse gas] 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 Claimant appealed this decision.

By a 2:1 majority, the Court of Appeal found that the Council was entitled to decide for itself, as a matter of “evaluative judgment”, whether the facts presented enough of a causal link between the extraction of the oil and its eventual combustion. It therefore followed that the Council’s decision not to require an additional EIA considering the Combustion Emissions for the proposed project was at its discretion. The Court of Appeal held that the Council’s decision not to do so was both “reasonable and lawful”. Lord Justice Moylan dissented, concluding that the Decision was unlawful.

Undeterred, the Claimant appealed this decision to the Supreme Court.

A landmark judgment

The central question for the Supreme Court was whether, under the Directive and the 2017 Regulations, it was lawful for the Council not to include the Combustion Emissions in the EIA for the proposed project. The Council could not lawfully grant planning permission unless an EIA had been carried out which complied with the obligation to “identify, describe and assess in an appropriate manner… the direct and indirect significant effects” of the project on climate. If the significant effects of the project on climate include Combustion Emissions, the Council was obliged to assess them as part of the EIA and its failure to do so rendered the Decision unlawful. Answering the question was a matter of legislative interpretation.

By a 3:2 majority, the Supreme Court held that the Council’s Decision was unlawful as the EIA for the project failed to assess the Combustion Emissions and the reasons for disregarding this effect were flawed. Lord Leggatt (in the majority judgment) held that the act of refining the crude oil extracted from the wells before it was combusted did not break the chain of causation between the project and the eventual Combustion Emissions, which are therefore within scope of the EIA and ought to be assessed in it.  The majority was also clear in its view that the environmental effects that must be assessed are not limited to effects on the location where the project is situated. This view gets to the very heart of the issue, namely that climate change is a global issue and ought to be treated as such. In the words of Lord Leggatt: “There is no correlation between where greenhouse gasses are released and where climate change is felt.”

In contrast, Lord Sales in the dissenting judgment (with which Lord Richards agrees) concluded that the Combustion Emissions were legally incapable of being effects of the project.

Impact of the case

Only time will tell how significant the ramifications of this case will be. However, it is important to note the following:

• Procedural requirements vs substantive decision: The legislative framework which was the subject of interpretation in this case is procedural in nature and not outcome based. The case is concerned with what climate impacts must be assessed as part of the EIA rather than what weight they are given when deciding whether or not to grant planning permission. That said it is likely that inclusion of scope 3 emissions (here, the Combustion Emissions) in EIAs will affect substantive decisions about planning permission.
• Application to other projects? The majority judgment was very specific to the facts around crude oil production and, in particular, the fact that it is “inevitable” that the oil extracted from this project would eventually undergo combustion. This begs the question: to what extent can this case be applied to other industries, extractive or otherwise? Lord Leggatt addressed the point specifically, distinguishing the extraction of crude oil from many other projects. Lord Leggatt made clear that oil is a “very different commodity from, say, iron or steel, which have many possible uses and can be incorporated into many different types of end product used for all sorts of different purposes”. It is therefore unclear how the case will apply to other types of projects where the direct and indirect effects are less clear cut.
• Wide-reaching ramifications? Despite it not being clear how the decision will impact other projects, overall, it is likely that this will cause more developers to include consideration of scope 3 emissions (in this case, the Combustion Emissions) in EIAs for fossil fuel projects and other high-greenhouse gas emitting proposals – or at least carefully consider their justifications for not doing so. As this case turns on the interpretation of an EU Directive, it may also have ramifications across the EU, as well as in the UK.

The tide is turning

This case is a prime example of how targeted strategic litigation, focusing on issues with implications which have the potential to be felt much more widely than in the specific case in which they arise, is a uniquely effective tool for campaigners.  As well as showcasing the benefits of bringing a claim, it also highlights just how effective interventions by charities, campaign groups and public bodies can be (Greenpeace UK, Friends of the Earth and the Office for Environmental Protection, as well as West Cumbria Mining, all intervened). Such interventions have the added benefit of carrying less cost risks than bringing proceedings yourself.

This decision is the latest in a series of successful strategic litigation cases for environmental protection (see for example Verein Klimaseniorinnen Schweiz and Others v. Switzerland). Itwas quickly followed by another landmark Supreme Court ruling widely welcomed by climate campaigners on the eve of the UK general election. With Labour then sweeping to power on a manifesto featuring many climate-friendly policies – and the Green Party quadrupling its seats in the House of Commons – climate change is firmly on the agenda.

While we do not yet know what the next few years under a new government will bring, one thing is clear: strategic litigation will be at the heart of efforts to drive climate action forward and crucial in helping to secure the legal breakthroughs needed to tackle the climate emergency effectively.

Bates Wells is the UK’s leading charity law firm and the first in the country to certify as a B Corp. We use our values as a compass to guide us in working for impactful clients making a difference to social and environmental issues. We have excellent credentials for taking on and winning strategic litigation that has a widespread positive impact. If you or your organisation would like to discuss bringing a challenge, please contact either Natasha Davies, Leticia Jennings or Matthew Smith.

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