Finch vs Surrey County Council: Supreme Court rules oil production planning permission unlawful for failing to assess downstream greenhouse gas emissions

In a landmark decision handed down today, the Supreme Court has declared that the grant of planning permission for oil production in Surrey was unlawful. This ruling came as the Court determined that the assessment failed to account for the downstream greenhouse gas (GHG) emissions resulting from the eventual combustion of the refined oil.

Case Background

The case, Finch vs Surrey County Council, centered on the correct interpretation of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 ("EIA Regulations"). Specifically, the Court examined the requirement to assess the "direct and indirect significant effects of a project" on the climate. The key issue was whether Surrey County Council, when considering an application for oil extraction at the Horse Hill Well Site, should have required an assessment of the downstream or 'scope 3' GHG emissions from the future use of the refined oil products.

Supreme Court's Judgment

In the majority judgment, Lord Leggatt, supported by Lord Kitchin and Lady Rose, emphasised that the effects of a project, as per the EIA Regulations, include a clear causal connection between the oil extraction and its combustion. The Court ruled that the extraction of oil is directly responsible for its subsequent combustion, thus creating a strong causal link that necessitates an assessment of the downstream emissions.

The Supreme Court dismissed the reasoning of lower courts, which suggested that intermediate steps like refining could break this chain of causation. It also rejected the Court of Appeal's view that such assessments could be left to decision-makers' evaluative judgment, arguing that this would lead to inconsistent and arbitrary decisions, especially critical given the increasing importance of climate change in policy and public debate.

Importance of Public Participation

The ruling highlighted the necessity of public participation in environmental decision-making, aligning with the objectives of the EIA Directive and the Aarhus Convention. Lord Leggatt noted that public awareness and democratic legitimacy in environmental decisions are crucial: "You can only care about what you know about."

Policy and Legal Framework

Addressing national policy on petroleum extraction, the Court noted that while national policies must be considered, they do not override the need to assess adverse climate effects. The Court also dismissed the argument regarding the transboundary nature of GHG emissions, reaffirming that climate change is a global issue and emissions are within the control of site operators.

Implications for Future Projects

The Supreme Court confirmed that general estimates of combustion emissions are feasible and that leaving oil unextracted does not necessarily lead to increased production elsewhere. For the Horse Hill project, the Court found that the downstream GHG emissions, which were significantly higher than direct emissions, could not be dismissed as negligible.

Conclusion

This Supreme Court ruling is expected to have significant repercussions for future planning decisions involving fossil fuel projects and other high-carbon proposals. The emphasis on assessing downstream emissions marks a critical step in integrating comprehensive environmental impact assessments into planning processes, ensuring that all potential climate impacts are thoroughly evaluated.

Members of the Cornerstone Climate team, who represented various parties in this appeal, will discuss the judgment's implications further in a webinar on Wednesday, 26th June at 3pm. Interested parties can register for the webinar to gain deeper insights into the case and its broader impacts.

Minority Judgment

The minority judgment, led by Lord Sales and supported by Lord Richards, also reviewed the EIA Directive and relevant case law but concluded that the Council had acted lawfully in granting planning permission without assessing downstream GHG impacts. Despite this divergence, the majority ruling sets a new precedent for environmental assessments in planning decisions.

Key Participants

Counsel and Legal Representatives

1. Sarah Finch and the Weald Action Group:

   • Counsel:
     • Estelle Dehon KC
     • Ruchi Parekh
   • Instructing Solicitors:
     • Rowan Smith
     • Carol Day (Leigh Day Law)
   • Additional Counsel:
     • Marc Willers KC (Garden Court Chambers)

2. Surrey County Council:

   • Counsel:
     • Harriet Townsend
     • Alex Williams
   • Instructing Solicitor:
     • Helen Forbes

3. Friends of the Earth:

   • Counsel:
     • Nina Pindham
     • Paul Brown KC (Landmark Chambers)
   • Instructing Solicitor:
     • Katie de Kauwe

4. Greenpeace UK:

   • Counsel:
     • David Welsh
     • Ruth Crawford KC (Axiom Advocates)
     • Richard Harwood KC (39 Essex Chambers)
   • Instructing Solicitor:
     • Jennifer Jack (Harper Macleod LLP, Edinburgh)

Respondents and Interveners

1. Secretary of State for Levelling Up, Housing and Communities
2. Horse Hill Developments Limited

Additional Interveners

1. Office for Environmental Protection: Used its intervention powers for the first time since its establishment in 2021.
2. West Cumbria Mining Limited

Judges

1. Majority Judgment:

   • Lord Leggatt
   • Lord Kitchin
   • Lady Rose

2. Minority Judgment:

   • Lord Sales
   • Lord Richards

This case involved a wide array of legal experts and environmental advocates, each contributing to the landmark ruling that will shape future environmental assessments and planning permissions for fossil fuel projects.