Challenge to Oil Drilling Expansion Plans

This was a significant judgment by the Supreme Court requiring that permission for fossil fuel projects cannot be granted without an assessment of the greenhouse gas emissions (GHGs) that will arise from the use of the fossil fuel that will be produced (i.e. from burning the oil that would be produced by an oil well, in this case).  We were instructed by Friends of the Earth, an intervening party in the Supreme Court  proceedings.  The case related to a decision by the Defendant to permit commercial exploitation at an onshore oil well site. 

Sarah Finch brought a Judicial Review on behalf of Weald Action Group against the 2019 decision of Surrey County Council to grant planning permission for the expansion of an existing oil well site. The site would increase in size from 2 to 6 wells and involve the extraction of crude oil for commercial purposes. The case was dismissed in the High Court (2020).  In the Court of Appeal (2021), two Justices upheld the appeal over the dissenting judgment of another.  The Supreme Court granted permission for the appeal to be heard in June 2023.

An EIA was produced for the development and included an assessment of the direct GHG emissions associated with the extraction of the crude oil (i.e. emissions from drilling operations at the well site), however omitted the GHG emissions associated with the use of the oil after the oil had been sold (e.g. combustion as petrol).

We represented Friends of the Earth in the Supreme Court, instructing Paul Brown KC and Nina Pindham as counsel.  Friends of the Earth’s submissions included that:

• The EIA Regulations were clearly drawn broadly, seeking to capture any “indirect, secondary, cumulative, transboundary, short-term, medium-term and long-term, permanent and temporary, positive and negative effects”
• It is inherent in the terminology “indirect” and “secondary” that the effect is separated from the development for which permission is sought e.g. by some other, intermediate step
• It is therefore incorrect (as the lower courts did) to determine that intervening processes should mean that an effect should not be assessed, especially in this case where all parties accepted that the carbon emissions from the end use of the oil and gas was “inevitable”
• Extensive international jurisprudence demonstrate the feasibility of assessing such ‘downstream’ emissions and are highly persuasive as to whether downstream emissions are indirect effects for the purpose of EIA in this country

On 20 June 2024, the Supreme Court judgment was handed down. In a majority ruling of 3 to 2, Lord Leggatt, Lord Kitchin and Lady Rose agreed that Surrey County Council’s decision to grant planning permission for the production of oil was unlawful. The emissions from the use of the fossil fuel was clearly an “indirect effect” of the development within the broad meaning of the Environmental Impact Assessment (EIA) Regulations and Directive.  Therefore, the council should have required a calculation of those GHG emissions from the use of the oil after it had been sold. The ‘intervening steps’ between production and use (which the Defendant, the Government and the oil company had argued meant these emissions were not an “effect” of the project in legal terms) were not strictly relevant: it was agreed that the oil would inevitably be burned if it was produced, and that satisfied any of the multiple tests for legal causation.   The Council had therefore been wrong, as a matter of law, not to require an estimate of these emissions so that they could be assessed in the EIA process.