Landmark legal challenge may impact planning decisions for new fossil fuel projects
A landmark legal challenge, which could have significant implications for fossil fuel and other carbon-heavy developments nationwide, was heard by the Supreme Court in a 2-day hearing last week. The case of R (on the application of Finch on behalf of the Weald Action Group) (Appellant) v Surrey County Council and others (Respondents) is of great interest to campaigners and businesses and many organisations have intervened in the proceedings.
The claim for judicial review, which is brought by former Surrey resident Sarah Finch on behalf of the Weald Action Group and is supported by Friends of the Earth, challenges the 2019 decision by Surrey County Council (SCC) to grant planning permission for oil drilling at Horse Hill in Surrey.
The judicial review focusses on the Environmental Impact Assessment (EIA) carried out by SCC for the purposes of the decision, which only considered the emissions from the process of extracting the fossil fuel from the ground. The EIA did not include the climate impacts arising from burning the extracted fossil fuel, known as the downstream or end-use emissions. Ms Finch contends that end-use emissions should also be considered in the EIA.
Journey to the Supreme Court
In December 2020, the High Court dismissed Ms Finch’s claim for a judicial review of the planning permission granted by SCC. The Court concluded that, as a matter of law, it would have been impossible for SCC to have considered the end-use emissions as part of the EIA, as the end-use emissions are incapable of falling within the scope of the EIA required by the EIA Regulations 2017.
Ms Finch appealed the High Court’s ruling, and a substantive hearing took place in the Court of Appeal in November 2021. On 17 February 2022, the Court handed down its judgment dismissing the appeal by a 2:1 majority. The Court of Appeal agreed with the High Court that SCC had acted lawfully but noted that, the question of whether the end-use emissions needed to be assessed as part of the EIA was one of fact and evaluative judgment for the planning authority, overturning the reasoning of the High Court’s ruling. This means, in practice, that this is a matter for planning authorities to decide on for themselves.
Ms Finch obtained permission to appeal to the Supreme Court and the hearing on 21-22 June 2023 was before Lord Leggatt, Lord Kitchin, Lord Sales, Lady Rose and Lord Richards.
The significance of the case is highlighted by the number of external groups that were invited by the Supreme Court to provide additional evidence including: Friends of the Earth (which had previously intervened in the High Court and Court of Appeal proceedings in favour of Ms Finch), the Office for Environmental Protection (intervening in a court case for the first time), Greenpeace and West Cumbria Mining.
More on the horizon
There are other similar cases on foot comprising challenges to public authorities relating to development decisions and how they interact with the climate crisis. Campaigners were recently refused permission to challenge the UK Government in connection with the granting of permission to develop a new coal mine in Cumbria. The campaigners are now exercising their right to have the court reconsider that refusal of permission decision at a hearing. West Cumbria Mining – the entity awarded the permission in that case – also intervened in Ms Finch’s case, indicating the close connection between the two. The outcome of the Cumbria case is being watched closely by practitioners and campaigners, and these cases generally reflect an increase in litigation, whether based in public or private law, arising out of the climate crisis.
The outcome of this landmark legal challenge has the potential to significantly impact the way in which planning decisions are made in connection with new fossil fuel projects, and other projects resulting in large carbon output (such as airports). If the Supreme Court overturns the Court of Appeal’s judgment, local authorities will be obliged to consider end-use emissions (in addition to emissions of the development itself) as part of any EIA undertaken in the course of deciding planning applications. The overall impact of the inclusion of end-use emissions in relation to a decision concerning an oil (and/or any other fossil fuel) development could materially alter the output of the EIA, such that the granting of permission for such developments would be less likely in the future.
Climate litigation is growing rapidly in both the public and private sectors, and is posing new and evolving risks to businesses. Much of the potential for disputes revolves around how and what emissions are measured, what is said (or not said) about the impact on climate that a particular business or undertaking may have, and the evolving regulatory landscape around these issues. Businesses will need to bear these principles in mind to ensure that (i) they have a comprehensive and holistic understanding of emissions and how they may affect their business in the context of e.g., supply chains, business expansion, and regulation; and (ii) any statements or representations that are made as to climate credentials are accurate and verifiable.