Environmental impact assessments and downstream emissions
A recent Supreme Court decision relating to the assessment of downstream greenhouse gas emissions should be considered when preparing an environmental impact assessment.
Facts
Sarah Finch, on behalf of the Weald Action Group, challenged Surrey County Council's decision to grant planning permission to Horse Hill Developments Ltd for the expansion of an onshore oil well site. The project's Environmental Impact Assessment (EIA), required for certain projects, did not consider downstream greenhouse gas emissions from burning the extracted oil. Finch argued this violated the United Kingdom's obligations under European Union Directive 2011/92/EU, which requires an EIA to identify, describe and assess the likely "direct and indirect significant effects" of the project on the environment, including climate.
Decision
The UK Supreme Court, by a three-to-two majority, ruled that the Council's approval was unlawful because the combustion of the oil produced were an effect of the project, and the EIA Directive does not impose a geographical limit on the scope of the environment effects. The ruling emphasised that these emissions, compared to emissions which may arise from other industrial processes, are foreseeable and can be estimated using established methods.
Analysis
The decision is likely to have significant implications on the delivery of new projects because it broadens the scope of what an environmental impact assessment may need to consider - potentially requiring them to not only identify greenhouse gas emissions released from within the site, but also those which may arise as a result.
This will be a positive to many who see this as a step towards tackling climate change, but at the same time, for those looking to progress projects at a time the economy needs a boost, another hurdle.
The ruling could also see more legal challenges aimed at both the scope and depth of environmental impact assessments, reflecting a growing trend in climate-related litigation.