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The Supreme Court has now handed down a landmark decision on Climate Change

The Supreme Court has now handed down the long-awaited judgement in the case of R(on the application of Finch on behalf of the Weald Action Group) V Surrey County Council

The decision was a majority decision and was finely balanced, with five Justices sitting of which two gave dissenting judgements. The case concerned the question of whether downstream greenhouse gas (GHG) emissions are a direct or indirect significant effect for the purposes of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (the “Regulations”).  The case concerned the extraction of oil for commercial purposes.  No assessment had been undertaken of the downstream GHG emissions generated from the end user’s burning of the oil, and if it was found that such emissions are to comprise likely significant direct or indirect effects for the purposes of the Regulations, the decision to grant the permission would be flawed in failing through the EIA to assess such effects.

It was accepted in the case that an intervening process between extraction and burning was the refinement of the oil and that such refinement and burning would be at locations and at times unknown and uncertain. How then might a party responsible for extracting the oil be reasonably required to assess the eventual outcome of it being burned when the refinement and combustion will inevitably take place off site by third parties and at a time and location that is not known?

Therefore two important questions were raised as part of the judgement

  1. Given that following its extraction, the product will be altered through its refinement before being burned, is it not right that as a matter of law the project for the extraction of the raw material does not include the project to which the assessment of its burning relates?
  2. Alternatively, the question of whether downstream emissions should be assessed is a matter for evaluative judgment for the Council – in other words a point to be determined by the Council on a case by case basis which should only be subject to the jurisdiction of the Court on the limited grounds on which the exercise of that public law discretion can be challenged?

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The majority decision of the Court answered the above questions in the following way –

Given that:

  • It is inevitable that the oil produced will be refined and will eventually undergo combustion,
  • That the combustion will produce GHG emissions that are ascertainable, and
  • That the emissions will have a significant impact on climate

it is clear on the facts that the emissions are effects of the project because there is an inevitability that all the oil extracted will be refined and burned in a way that will release emissions that will have an impact on the climate.

The Court further held that it did not matter for the purposes of the Regulations where the emissions would be generated, and it was wrong for the Council to confine the remit of the EIA to the application site.

On the question of whether through the process of refining crude oil the characteristics of the product change such that it is not the extracted product that is being burned but a different product (having undergone refinement), the Court held that the refinement does not alter its basic nature or intended use, and cannot reasonably be regarded as breaking the causal connection between the extraction of the oil and its subsequent combustion.

At first instance Holgate J in the High Court had expressed a concern that requiring the assessment of downstream emissions could effectively open the floodgates to an open ended assessment of likely effects, but the Supreme Court was quite clear that the assessment of the combustion of oil which is the one use to which oil may be put is quite different to other projects such as the manufacture of steel.  The Supreme Court found that unlike oil, steel as a product can be put to many possible uses such as to make the assessment of downstream emissions unduly onerous and unworkable.  An example was also given in respect of vehicle component manufacturing.  The car as a product is something quite different to the individual component – the inference being that the assessment of GHG emissions generated from the use of a car fell to the manufacture of the car and not its individual components.

Finally,  all five of the judges unanimously agreed that the question of whether the assessment of downstream emissions should form part of an EIA is not an evaluative judgment on which different planning authorities could come to different findings.

The case will have far reaching implications for many projects and highlights the growing importance to effectively grapple with the assessment of GHG emissions and climate change in planning decisions.

Ward Hadaway’s planning team instructed Greg Jones KC and Alex Greaves of FTB on behalf of the Fourth Intervenor in the proceedings. We have a deep understanding of the extent to which climate change considerations may legitimately form part of the decision making process. If you feel we may be able to assist in relation to a project please contact one of our expert Planning Solicitors.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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