Downstream GHG Emissions to be Taken into Account in Planning Decisions
In a decision with far-reaching implications, the UK Supreme Court has determined that a grant of planning permission for oil production was unlawful for failing to take into account downstream greenhouse gas (GHG) emissions (Finch v Surrey County Council).
UK and European Union (EU) law requires that before development consent is granted an environmental impact assessment (EIA) of a project be carried out, so that any such impact may be exposed to public debate and considered in the decision-making process. In this case, Surrey County Council accepted as sufficient an environmental statement which assessed only direct releases of GHG at the project site over the lifetime of the project and contained no assessment of the impact on climate of the combustion of the oil. It was not disputed that these GHG emissions could easily be quantified and would have a significant impact on climate. The only issue was whether the emissions would be effects of the project at all, and the Court concluded that it is plain they would be.
The UK Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (the Regulations) implement EU Directive 2011/92/EU (as amended), which states that: “Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out.”
In December 2018, Horse Hill Developments Ltd sought planning permission from Surrey County Council to expand an existing onshore oil well site. The initial EIA considered the environmental impacts of “the direct releases of greenhouse gases from the well site boundary resulting from the site construction, production, decommissioning and subsequent restoration over the lifetime of the proposed development.” It did not, however, assess the impact of the downstream GHG emissions that would result from the eventual burning of the oil produced at the site. After the Council granted planning permission in September 2019, a local resident applied for judicial review of that decision on the basis that this omission rendered the decision in breach of the Regulation and so unlawful. She was unsuccessful at both the High Court and Court of Appeal, but ultimately succeeded before the Supreme Court.
The key question for consideration was whether the words “significant environmental effects of those projects” was limited to activities and effects at the project site, or extended both to the refined products produced elsewhere from the crude oil and to the burning of those products elsewhere. The Court concluded that the fact that the product ultimately burnt would not be the same as the crude oil produced from the well site was not enough to break the chain of causation, and that the Regulations do not “impose any geographical limit on the scope of the environmental effects of a project”.
This ruling will have immediate implications for planning decisions for fossil fuel and other projects in the UK, and (by extension) potentially in the EU.
