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

Summary:

The case concerns Surrey County Council’s (SCC) 2019 decision to grant planning permission to a company named Horse Hill Developments Limited to expand an existing site to add four new wells for the production of hydrocarbons (crude oil) over a 20 year period. The environmental statement issued by the developer provided an assessment of the direct (scope 1 and 2) greenhouse gas (GHG) emissions associated with the project but did not assess the emissions that would subsequently be produced as a result of using the product (scope 3 emissions).

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 UK’s obligations under European Union Law (Directive 2011/92/EU, the EIA Directive) as implemented in domestic law by the EIA Regulations. They contended that either SCC had misinterpreted the relevant national regulations in determining that the consumption-based emissions could 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 consumption emissions from the project should have been considered in relation to the UK’s net zero target.

On July 15, 2020, the judge granted permission to apply for judicial review and identified a challenge to national planning policy on the ground that it is not in conformity with EU law. The claim then proceeded in the High Court. On October 20, 2020, the Secretary of State for Housing, Communities and Local Government was joined as an interested party to respond to the new grounds related to national planning policy. Friends of the Earth was granted permission to intervene.

On December 21, 2020, 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.” The case was subsequently appealed. Friends of the Earth was again granted permission to intervene.

The Court of Appeal hearing took place in November 2021. At the hearing, the Appellant argued:
• That the High Court had taken an overly narrow interpretation of the EIA regime which was not aligned with established national and EU case law precedent.
• Furthermore, there was an imbalance between the weight afforded by the decision-maker to the benefits that the use of the extracted oil would bring, and the lack of consideration of the climate impacts of this usage.
• It was advanced that the climate impact resulting from the end-use consumption of the oil extracted must be considered under the EIA regime.
• Additionally, that the Council’s reasons and consequently decision to exclude the end-use emissions from the EIA were inconsistent and legally flawed.
• The Appellant argued further that it is feasible to measure scope 3 emissions whilst still ensuring that the EIA regime is achievable in practice.

Friends of the Earth supported the Appellant’s arguments, and referred to case law on EIA from other jurisdictions, to point to the workability of assessing scope 3 emissions from fossil fuel projects. 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.

This case is now going to the Supreme Court.

At Issue: Whether the UK regulations require EIAs for fossil fuel production to assess the scope 3/ end-use GHG emissions arising from these developments.