By Ayyoub (Hazhar) Jamali, postdoctoral researcher at the University of Zurich
Introduction
On 20 June 2024, the UK Supreme Court delivered a landmark judgment in the case of R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council and others. This decision, reached by a majority of 3 to 2, mandates that Environmental Impact Assessments (EIA) must include the assessment of greenhouse gas (GHG) emissions resulting from the eventual combustion of extracted oil. The ruling has profound implications for environmental law and policy, highlighting the extent of developers’ responsibilities in mitigating climate change impacts. It mirrors a significant legal precedent set earlier in January 2024 by the Oslo District Court, which underscored the legal obligation to assess combustion emissions under Directive 2014/52/EU (EIA Directive) and relevant national regulations (p. 88).
Background
The factual and procedural background of the case involved the expansion of oil production at the Horse Hill Well Site in Surrey. Initially, Surrey County Council required the Oil Well Development (developer) to include an assessment of combustion emissions in their EIA. However, the Council later accepted a narrower EIA that only considered direct emissions at the project site over its lifetime and did not include an assessment of the climate impact of the oil’s combustion (para. 5). Following this decision, Sarah Finch, representing the Weald Action Group, applied for a judicial review of the Council’s decision. She argued that the EIA should have accounted for GHG emissions from using the oil when assessing the environmental impacts of the project, not just the drilling site itself. The Council countered, arguing that it had the discretion to decide the full impact of the project. Both the High Court and the Court of Appeal dismissed her claim, leading the case to be reviewed by the Supreme Court.
Judgment
The central issue in the case was whether the Council lawfully granted planning permission to a developer under the 2017 EIA Regulations, which implement the EIA Directive in the UK. The Supreme Court concluded that the Council acted unlawfully by approving the project without considering combustion emissions in the EIA (paras. 6, 52-53, 174). The judgment was based on the finding that the EIA failed to evaluate the climate effect of the combustion of the oil, and the reasons the Council provided for disregarding this impact were deemed clearly flawed (paras. 174, 111).
The Council had only assessed the climate effects directly attributable to the project, stating that ‘the scope of the assessment self-evidently did not comply with the legal requirement to assess both direct and indirect effects of the proposed development’ (para. 101). However, the Court reasoned that ‘it is in the very nature of “indirect” effects that they may occur as a result of a complex pathway involving intermediate activities away from the place where the project is located’ (para. 102). Specifically, the Court established a clear causal link between oil extraction and its combustion, emphasizing that fossil fuels are extracted with the primary intent of being used as energy sources, inevitably leading to combustion. This direct causal relationship necessitates the inclusion of combustion emissions in the EIA to fully understand the environmental impact of the project (paras. 79-92).
The Court rejected the Court of Appeal’s position that the necessity to assess emissions is an evaluative judgment for individual planning authorities. Instead, it argued that this is a matter of law, which rationally yields only one correct answer (para. 56). It argued that the legislative regime mandates that an EIA must ‘cover both the direct effects and any indirect, secondary, cumulative, transboundary, short-term, medium-term and long-term, permanent and temporary, positive and negative effects of the project’ (para. 83). The Court highlighted that the EIA Directive does not set any geographical limits on the environmental effects that must be identified, described, and assessed for a project requiring an EIA. All significant potential impacts of the project must be evaluated, regardless of their location or timing. There is no justification to limit the assessment solely to effects expected at or near the project’s site (para. 93).
The judgment also stressed that excluding these emissions would undermine the Directive’s objective of ensuring comprehensive environmental considerations in decision-making processes. Writing for the majority, Lord Leggatt’s analysis highlighted the interconnected history and reciprocal influence between the Aarhus Convention and the EIA Directive. He emphasized the critical importance of public participation in the EIA process, emphasizing its role in providing early and effective opportunities for stakeholders to express their views, thereby enhancing democratic legitimacy. Furthermore, he stressed the role of public access to information, citing the principle that ‘you can only care about what you know about’ (paras. 20-21).
Conclusion
The Supreme Court’s landmark judgment marks an important victory for grassroots environmental campaigners and deals a heavy blow to the fossil fuel industry in the UK and potentially beyond, with implications for similar legal challenges across Europe. This ruling has far-reaching implications, echoing a similar decision by the Oslo District Court in January 2024, which also emphasized the legal obligation to assess combustion emissions under the EIA Directive and relevant national regulations. The arguments put forth in the Norwegian case appear to have influenced the reasoning of the UK Supreme Court, as endorsed by Lord Leggatt for the majority, who found them persuasive (paras. 171-173). This cross-jurisdictional resonance underscores a growing legal consensus regarding the importance of rigorous EIA in regulatory frameworks across Europe. As such, the UK Supreme Court’s decision not only benefits environmental protections domestically but also sets a potentially influential precedent for future environmental litigation in the broader European context.