Contributors
How do you know if the scope of an environmental statement is adequate in any case? Some guidance has been recently provided by the Supreme Court (Court) in the Finch case (*).
The Court held, by a 3-2 majority, that the greenhouse gas (GHG) emissions which will occur when oil is 'inevitably' burnt as a fuel by other parties in the future could not be scoped out of the environmental impact assessment (EIA) for the oil well project (extraction project) in that case.
Summary
As the Court succinctly stated, in this case there was no uncertainty about the relevant facts.
It was known with certainty that the activity giving rise to the requirement to carry out an EIA (extraction of an estimated 3.3 million tonnes of petroleum (referred to as oil in this briefing)), would lead to the combustion of the oil and release of GHG into the atmosphere. It was an agreed fact that, if the extraction project went ahead, this chain of events and the resulting effects on climate were not merely likely but 'inevitable'.
The developer's environmental statement had confined its assessment of GHG emissions to the direct releases of GHG from within the extraction project boundary. The council accepted and adopted this approach.
Surrey County Council's decision as mineral planning authority to grant planning permission was based on an officer's report that advised that the proposed development would not give rise to likely significant effects on the climate from GHG emissions "directly attributable" to the extraction project.
In other words, GHG emissions indirectly caused by the extraction project were not considered.
The issue
The Court majority was clear that the only issue to be decided by the Court was whether the GHG emissions from future combustion of the oil by a third party could be likely significant effects of the extraction project.
If the likely significant effects of the extraction project on climate included the inevitable combustion emissions, then they had to be assessed as part of proper EIA process for the extraction project. A failure to do so would render the decision to grant planning permission unlawful.
The judgment
By a majority, the Court held that the council’s decision to grant planning permission to extract oil was unlawful because the EIA for the extraction project failed to assess the 'inevitable' GHG emissions which would occur when the oil is burnt as fuel after a refining process at another facility.
The Court held that the fact that GHG emissions arising from combustion of the extracted oil would emanate from activities beyond the extraction project boundary was not a valid reason to exclude them from EIA. An impact is not precluded from being an effect of a project because its immediate source is another activity that occurs away from the project site.
The Court rejected the argument that because subsequent processes and uses are regulated by non-planning regulatory regimes, the LPA could assume that these regimes would operate effectively to avoid or mitigate the scope for material environmental harm.
The Court emphasised the essential purpose of the EIA process is to ensure that decisions likely to significantly affect the environment are made on the basis of full information and with public consultation. If likely significant adverse effects are unavoidable then they must be identified and assessed.
Further, the Court held that UK national policy is irrelevant to the proper interpretation of the EIA Directive (though it is clearly relevant to the substantive decision whether to grant consent for the project). National policy cannot dispense with the obligation to carry out an EIA or justify limiting the scope of the environmental statement.
Comment
Sarah Holmes, Legal Director in the WBD Planning team said:
"The Supreme Court found the scope of the assessment did not comply with the legal requirement to assess both direct and indirect effects of the proposed development.
The Supreme Court majority was of the view that the question of whether a particular environmental impact is, or is not, an effect of the project is a question "which in the great majority of cases will have only one answer".
The EIA process applies the test of whether the effect is "likely". The Court referred to international guidance that equates "likely" with a probability of between 66% and 100%. Although noting that "arguably this is too strict a standard", the Court stated that there was no need to express a view on this because, in this case the effect was not merely "likely" but "inevitable".
The Court provides very little assistance for those other cases where the answer may not be as clear as in this case, beyond stating, "if there is insufficient evidence available to found a reasoned conclusion that a possible environmental effect is "likely", there is no requirement to identify, describe and try to assess this putative effect."
It is always important that LPAs and developers carefully consider the scope of the EIA process. Litigants are often sophisticated and are increasingly pursuing claims which bear on pressing issues such as climate change.
The Supreme Court majority placed great emphasis on the essential purpose of the EIA process – ensuring that decisions likely to affect the environment are made on the basis of full information. A finding that there will be likely significant adverse effects does not mean that planning consent cannot be granted. However, the EIA process must be followed.
In each case, a proper assessment of likely significant effects of an EIA development must be carried out, enabling public debate to take place on an informed basis. That is a key democratic function of the EIA process that the Court was clear was not fulfilled in the Finch case.
We have successfully advised developers and public authorities on hundreds of EIA developments spanning multiple sectors. We believe this case is unlikely to open any floodgates. It does provide a timely reminder that, to minimise the risk of a legal challenge to a planning permission, the proper EIA process must be followed, where required."
Please do not hesitate to contact us, or your usual contacts if you have any questions or seek further information on matters mentioned in this note.
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This article is for general information only and reflects the position at the date of publication. It does not constitute legal advice.
