If you thought Hillside was an enigma wrapped in a mystery…
There is much to unpack in R (Finch) v Surrey County Council (Supreme Court, 20 June 2024) as to what it means for those carrying out environmental impact assessment; determining applications and appeals which have been subject to environmental impact assessment, or indeed objecting to such projects. To what extent should “downstream” (and indeed “upstream”) effects of the development applied for be assessed – whether those effects be by way of carbon emissions or otherwise?
Let’s not jump to simplistic conclusions. So far I have only read the case once, armed with a highlighter pen, two cups of Nespresso black coffee, on-line dictionary and a Wispa bar. That was not enough. Reinforcements hopefully by next week. Watch this space.
What you have is two diametrically opposed judgments – the majority judgment by Lord Leggatt, with which Lord Kitchen and Lady Rose agree (and which is now the binding statement of the law) and a dissenting judgment by Lord Sales, with which Lord Richards agrees. 3 – 2. And to quote from Matthew Fraser (who acted in the case for the developer, led by David Elvin KC): “Interesting to think that this claim for judicial review was originally found to be “unarguable” on the papers, and also “unarguable” at the oral renewal hearing, by two different High Court Judges. Permission to bring the claim for judicial review was then granted by the Court of Appeal, but then both the High Court and the Court of Appeal rejected the Claimant’s case (for different reasons).” (NB well done, including for what must have been incredible persistence in the face of judicial adversity in the courts below, to Estelle Dehon KC, Marc Willers KC and Ruchi Parekh, acting for the ultimately successful claimant).
The bare conclusion from the beginning of Lord Legatt’s judgment:
“It is agreed that the project under consideration involves the extraction of oil for commercial purposes for a period estimated at 20 years in quantities sufficient to make an EIA mandatory. It is also agreed that it is not merely likely, but inevitable, that the oil extracted will be sent to refineries and that the refined oil will eventually undergo combustion, which will produce GHG emissions. 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 to me plain that they are.”
There is the clear dichotomy between the wider role for environmental impact assessment according to the majority judgment, potentially encompassing scope 3 activities (using the GHG Protocol categorisation) – consequences of the activities of the entity occurring from sources not owned or controlled by the entity (and in the case of carbon, usually controlled at a national level) – and the narrower role according to the judgments in the lower courts and according to Lord Sales’ dissenting judgment (“These are all “big picture” issues which a local planning authority such as the Council is simply not in a position to address in any sensible way… Further, it would be constitutionally inappropriate for a local planning authority to assume practical decision-making authority based on its own views regarding scope 3 or downstream emissions and how these should be addressed in a manner which would potentially be in conflict with central Government decision-making and its ability to set national policy.”)
What indeed is the development? Easy question for us planners and planning lawyers? Wait, here comes Lord Leggatt:
“Holgate J also said, at para 110, that “indirect effects” of the proposed development cover “consequences which are less immediate, but they must, nevertheless, be effects which the development itself has on the environment” (emphasis in original). Outside the realms of Kantian metaphysics, there is no such thing as “the development itself” which enjoys some sort of separate noumenal existence. There are only the human activities which constitute the physical development (or “project”, to use the terminology of the EIA Directive).”
(This was the on-line dictionary moment for me I confess).
Lord Sales’ dissenting judgment makes the case for caution (I’m two coffees down at this point so am ready):
“In relation to … the present case to enlist the EIA Directive in the worthy cause of combating climate change, by seeking to press it into service in relation to requiring EIA in respect of downstream or scope 3 greenhouse gas emissions, it is relevant to bear in mind the cautionary words of Lord Bingham of Cornhill in Brown v Stott [2003] 1 AC 681, 703, quoting from Hamlet in relation to the European Convention on Human Rights:
“The Convention is concerned with rights and freedoms which are of real importance in a modern democracy governed by the rule of law. It does not, as is sometimes mistakenly thought, offer relief from ‘The heart-ache and the thousand natural shocks That flesh is heir to.’”.
As Lord Bingham pointed out, that Convention had to be interpreted according to its terms, not in an effort to produce a remedy for every problem which might be identified in a particular situation. So, in the present context, the EIA Directive, interpreted according to its terms, has a valuable role to play in relation to mitigating greenhouse gas emissions associated with projects for which planning permission is sought, but it should not be given an artificially wide interpretation to bring all downstream and scope 3 emissions within its ambit as well. That has not been stipulated in the text of the EIA Directive, is not in line with its purpose and would distort its intended scheme.”
But these two quotes do set up the issues nicely. I would draw out these key questions:
- What now is the necessary scope for a lawful environmental impact assessment process and does Finch have any material bearing on development projects more generally as opposed to those relating to, for instance, the extraction of fossil foils where there is an inevitability as to “downstream” effects (and where can a decision maker draw the line as to likelihood of downstream effects)?
- What now is the breadth of the evaluative role of the decision-maker, with which the courts should not interfere?
- What are the implications of the judgment for the formulation of the “environmental output report” process, which may one day replace environmental impact assessment?
There are already at least three camps with loud voices:
- Great judgment, far-reaching effect, being the need for climate change to form a more central backdrop to decision-making in relation to particular applications and appeals; or
- This is a judgment which calls for assessments to cover issues which the decision maker is not in a position to address in a sensible way (according to Lord Sales) and which are properly addressed at a national level; or
- This is a judgment with narrower implications than people are assuming and which can be addressed in a straight-forward way within environmental impact assessment work where needed.
By next week perhaps I’ll have some tentative answers to those questions. If you are already in one of those three camps, I shall assume you are well ahead of me in your thinking. Respect.
Finally, I have mentioned him already: Mr Justice Holgate. Congratulations on his well-deserved appointment to the Court of Appeal.
Simon Ricketts, 22 June 2024
Personal views, et cetera
SIMONICITY 
Being familiar with the case doesn’t; really help. From something that might be published next week some thoughts.
Since the judgment rejects ruling out GHG emissions simply because they may also be the consequence of another project (e.g a refinery), the question arises what other stages in fossil fuel production and use require such matters to be assessed. Apart from refineries, it raises questions about consents for oil terminals and storage facilities, fuel storage, petrol filling stations and the like (as well as their gas and coal equivalents). It seems logical that as the project in question gets closer to the ultimate use of the fuel, the case appears to be ever stronger to requiring EIA to assess GHGs.
The importance of causation to understanding whether an environmental effect in terms of downstream GHG emissions is an indirect effect of the project is not simple nor was it explained by the Court clearly since in that case “the extraction of the oil is not just a necessary condition of burning it as fuel; it is also sufficient to bring about that result because it is agreed that extracting the oil from the ground guarantees that it will be refined and burnt as fuel. … a situation where X is both necessary and sufficient to bring about Y is the strongest possible form of causal connection”. It leaves it open to dispute whether some lesser form of causation, with more significant intermediate intervention, will be sufficient to require assessment.
Additionally, Lord Leggatt considered that iron and steel production would be very different since they “have many possible uses and can be incorporated into many different types of end product used for all sorts of different purposes” though presumably the same would not be said of a consent to manufacture fuel-burning vehicles or similar or even if the destination of the steel were known. He also said that “similar considerations apply to Holgate J’s examples of manufacturing components for use in the construction of motor vehicles or aircraft. Where a component is manufactured which forms a small part of a much larger object, such as a motor vehicle or aircraft, the view might reasonably be taken that the contribution of the component is not material enough to justify attributing the impact on the environment of the end product to the activity of manufacturing the component part”.
Nonetheless, there may be cases where the manufacture of a component (e.g. car engines, outboard motors for boats, for example) may be key to the operation of the end productwhich will generate GHGs that indirectly impact on the environment. The extent of causation remains highly arguable in many cases – and so the scope of the duty to assess GHG emissions remains uncertain. Whilst the minority required emissions to be more closely related to the development project itself, the effect of the majority judgment makes itprudent for to adopt a pragmatic and cautious approach of including the assessment of downstream GHGs so far as reasonably possible (whilst noting uncertainties in the exercise) in the ES for any application where GHG emissions are likely to occur downstream of the project and be connected to it. The judgment applies to other fossil fuel projects since EIAs of applications for the extraction of gas and coal must include an assessment of GHGs since it is virtually certain that they will be burned regardless of any intermediate treatment.
In local authority decision-making, there sees little that can be done with the information, other than the extreme one of refusing the application, given the global nature of the impacts and the likely small contribution an individual development to that global picture. However whilst it may be tempting to agree with Lord Sales’ dissent that “It is no part of the object of the EIA Directive to generate information which does not have a direct and practical bearing on the matters to be decided by the decision-making authority” that view was not supported by the majority. There is more likely to be a dispute more at the policy level between on the one and CC concerns and on the other the continuing need for the purposes of energy resilience and transition for fossil fuels.
As you say, personal views etc
NB we are discussing the implications at a webinar on 1 July.
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(Sorry for the typos)
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Many thanks David – valuable comments.
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