R (Finch on behalf of the Weald Action Group & Others) v. Surrey County Council (& Others)
Jurisdiction: High Court of England and Wales
Principle law(s): Climate Change Act
Side A: Sarah Finch
Side B: Surrey County Council
Side C: Friends of the Earth
Core objectives: Whether the EIA Regulations requires environmental impact assessments of fossil fuel production projects to assess the GHG emissions arising from the end-use of the fossil fuels.
The case concerns the legality of Surrey County Council’s (SCC) decision to grant planning permission for oil production at a site in Horse Hill (Surrey England) without considering the scope 3 emissions arising from this development. On September 27, 2019, SCC granted planning permission to Horse Hill Developments Limited (the “Developer”) for the retention and extension of a well site and the drilling of four new wells for the production of hydrocarbons (crude oil) over a 25 year period (20 years operational).
The environmental statement issued by the Developer under the EIA Regulations provided an assessment of the greenhouse gas (GHG) emissions associated with the production of the oil itself (scope 1 and 2 emissions). It did not assess the emissions that would subsequently be produced as a result of using the oil (scope 3 emissions) i.e. from the combustion of the oil. The Claimant, Sarah Finch, argued that SCC’s failure to consider these emissions in determining whether to approve the project was a breach of the EIA Regulations. The Claimant contended that either SCC had misinterpreted relevant national regulations in determining that the end-use emissions should be excluded from the assessment, or that the relevant regulations were unlawful because they were in conflict with the EIA Directive. They also argued that the end-use emissions from the project should have been considered in relation to the UK’s net zero target.
On July 15, 2020, the case was granted permission to proceed and the judge identified a further issue relating to whether national planning policy was in conformity with EU law. On October 20, 2020, the Secretary of State for Housing, Communities and Local Government (the SoS) was joined as an interested party to respond to the new grounds related to national planning policy. The trial took place in the High Court on 17-18 November 2020. The case was defended by SCC, along with two interested parties: the Developer and the SoS. The environmental NGO Friends of the Earth (FoE) obtained permission to intervene, and supported the Claimant’s case.
On December 21, 2020, the judgment was handed down. The case was dismissed by the High Court on the basis that “the assessment of GHG 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.” Permission to appeal was subsequently granted on the basis that there were compelling reasons for the case to be heard.
The appeal hearing took place on 16-17 November 2021. The Appellant (Ms Finch) argued that the scope 3 emissions were “likely significant effects of the development” which should have been taken into account as part of the EIA, under regulations 4 and 18 and Paragraph 5 Schedule 4 of the EIA Regulations. In addition, the Appellant argued that the reasons given by SCC for not requiring that assessment were inadequate (and so unlawful), because it had not evidenced what separate pollution control regimes existed, and how they would operate, to regulate those downstream emissions and absolve it of the requirement to take them into account. FoE again intervened in the appeal and supported the Claimant’s challenge. FoE referred to case law from other jurisdictions in which EIA does include the assessment of scope 3 emissions in the context of fossil fuel projects. The appeal was defended by SCC, the Developer and the SoS.
The Court of Appeal’s decision was handed down on the February 17, 2022. The decision was split 2:1. The majority ruling was that SCC’s decision to grant planning permission without the EIA considering the end-use GHG emissions was lawful. The decision-maker had a discretion on whether or not to include these impacts in the EIA. The dissenting judge, Lord Justice Moylan, concluded that the Council’s decision was unlawful.
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