Supreme Court Allows Climate Change Appeal

On 20 June 2024, the Supreme Court handed down judgment in R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council and others (Respondents) [2024] UKSC 20. 

Stephen Tromans KC and Ruth Keating from 39 Essex Chambers acted for the Office for Environmental Protection (OEP). Richard Harwood KC acted as part of the counsel team for Greenpeace UK.

This is the first time the OEP intervened in a case, reflecting its significance as one of the most important environmental appeals to come before the Supreme Court.

The issue before the Supreme Court was whether Surrey County Council (SCC) acted lawfully by not requiring the development's Environmental Impact Assessment (EIA) to assess the impact of Greenhouse Gas emissions resulting from the future combustion of oil produced by the new oil wells.

A majority of the Supreme Court allowed the appeal – holding that SCC’s decision to grant planning permission for this project to extract petroleum was unlawful because (i) the EIA for the project failed to assess the effect on climate of the combustion of the oil to be produced, and (ii) the reasons for disregarding this effect were flawed. Lord Leggatt delivered the majority judgment (with whom Lord Kitchin and Lady Rose agreed). Lord Sales delivered a dissenting judgment (with whom Lord Richards agreed).
The judgments of the Supreme Court are detailed; however, the following is noted in respect of the majority judgment:

• The Supreme Court: (i) rejected that as a matter of law the combustion emissions could not be regarded as environmental effects of the project within the meaning of the legislation; and (ii) rejected that the question of whether the combustion emissions were effects of the project was a matter of evaluative judgment for SCC. 
• It was plain that the combustion emissions were ‘effects’ of the project (at [7]).
• The EIA Directive does not impose any geographical limit on the scope of the environmental effects of a project. There is no justification for limiting the scope of the assessment to effects which are expected to occur at or near the site of the project (at [93]).
• The Supreme Court majority rejected that emissions cannot, in law, be regarded as effects of the activity of extracting the crude oil because of the need the intermediate refining process to take place before the oil could be used. The process of refining crude oil does not alter the basic nature and intended use of the commodity (at [118]).

This was an approach consistent with the OEP’s submissions. The majority judgment (at [50]) also noted in particular the helpfulness of the OEP’s submissions to the Supreme Court.