Finch in the Supreme Court and thinking about legal stock
With Finch, the UK Supreme Court has handed down an important, welcome decision on integrating climate into decision-making processes for fossil fuel extraction, and more broadly asserting the significance of environmental impact assessment (EIA).
Surrey County Council had granted planning permission for the extraction of oil at Horse Hill in Surrey. The applicants argued, successfully before the Supreme Court, that the grant of planning permission was unlawful because it had not complied with EIA legislation, specifically, for failing to assess the project’s ‘scope 3’ emissions (ie the emissions from the subsequent use of the oil extracted). Those involved should be, and rightly are, celebrated for their persistence and their success.
So it feels a little churlish to sound a note of caution. But that note of caution is fundamentally about the ways in which the courts capture the energy in climate law, and the need to focus on the more mundane legal context in which courts operate – on the ‘legal stock’ that potential litigants (and the rest of us) work with. This decision is fragile in at least two respects. First, the 3:2 majority in the Supreme Court overturned a contrary result in both the Court of Appeal and the High Court. Even in this clearest imaginable case, the difficulty of using the courts to progress UK climate action is obvious. Secondly, this is a case of statutory interpretation, and both the specific legislation on which it is based (EIA) and the broader planning framework in which those specific rules sit, are profoundly vulnerable, and need attention.
The Court of Appeal, consistently with a strong trend in English climate cases, emphasised the evaluative discretion of the decision-maker. In particular, deciding whether scope 3 emissions were ‘indirect effects’ of the project of oil extraction (and hence within the scope of EIA) ‘was a classic question of fact and judgment for the decision-making authority’, which would only be subject to the usual, restrictive, grounds of judicial review – essentially, irrationality.
The Supreme Court disagrees, holding unanimously that the concept of ‘effects of a project’ is a matter of legal interpretation for the court; indeed, leaving this issue to the discretion of individual planning authorities would be ‘a recipe for unpredictable, inconsistent and arbitrary decision-making.’ The majority held it to be ‘plain’ that the scope 3 emissions of a project for the extraction of fossil fuel are ‘effects of the project’ and so within the scope of EIA; the minority, that scope 3 emissions do not fall within the scope of the legislation.
It is not a criticism to say that the majority decision is narrowly crafted. The majority is at pains to counter concerns about the potential reverberations of the judgment, particularly the assumed floodgates problem, and the disproportionality of assessing scope 3 emissions for other projects. The Supreme Court emphasises the inevitability of the scope 3 emissions in this case, relative to their ‘indeterminacy’ in (for example) a factory producing metals, as well as the availability of a recognised method for calculating the emissions. Some of the media commentary on the case has focused on other projects for the extraction of fossil fuels. More difficult cases, from steel manufacture to airport expansions, lie ahead. And of course we must note the obvious point, emphasised also in the judgment, that incorporating scope 3 emissions into an EIA does not in itself prevent the approval of this or any other fossil fuel proposal.
The hardest part of climate law is integrating climate (and other environmental) ambition, including in the form of legally binding targets, into the routine day-to-day business of governing. EIA, and other forms of environmental assessment, are designed to do that. Environmental assessment would have had little to say about the expansion of fossil fuel extraction, had the Supreme Court gone the other way.
Whilst we may hope that this case signals a change of mood after a line of disappointing climate decisions in the English courts, it is about statutory interpretation, and depends on the continued robustness of the legislative regime behind it. Our emphasis on ‘climate litigation’ can divert our attention from legal stock. And since leaving the EU, environmental assessment (and process more generally) has been in the sights of government. The Levelling Up and Regeneration Act 2023 allows whoever forms the next government to ‘amend, repeal or revoke’ existing environmental assessment laws by regulation, replacing them with currently undefined Environmental Outcomes Reports. Whatever the view of the next government on the need to develop new fossil fuel resources, there is an obvious risk that environmental assessment will be weakened or removed in cases where it is inconvenient, be that for fossil fuel extraction, renewable energy infrastructure or housing.
Further, environmental assessment sits in the framework of planning law. Planning has been subject to ‘political vilification’ for decades, and that continues. But we need planning, to make liveable, let alone beautiful or prosperous, communities, democratically and inclusively, and to respond to our environmental crises. Ensuring the systemic and mandatory (not piecemeal and discretionary) application of environmental assessment and planning deserves attention.
In this respect, the majority’s characterisation of EIA as playing ‘a key democratic function’ as an enabler of ‘public debate […] on an informed basis’, is very welcome. This emphasis addresses the concern about disproportionality if, as the minority judgment puts it, ‘such information could not inform in any helpful or appropriate way the decisions to be taken’. The fact that ‘economic, social and other policy factors’ may ‘outweigh’ environmental issues in any particular decision not only ‘does not avoid or reduce’, but in fact ‘enhances the importance’ of ‘comprehensive and high-quality information about the likely significant environmental effects of a project’.
This assertion of the inherent value of EIA is significant in the context of the political and legislative vulnerability of environmental assessment and planning. Environmental assessment, and the planning system of which it forms part, is not a bureaucratic inconvenience when everyone ‘knows’ the right answer – they are fundamental elements of good, democratic decision-making, including on climate.
