Greenpeace Limited, R (on the application of) v Secretary of State for Energy Security and Net Zero & Anor
[2023] EWHC 2608 (Admin)
R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council and others
20 June 2024
[2024] UKSC 20
Supreme Court
A company wanted to drill for oil. The question was whether the environmental assessment needed to include the greenhouse gases produced when the oil is eventually burned as fuel (far away). The Supreme Court said YES, because burning the oil is an inevitable consequence of extracting it. The council was wrong to ignore this, so the permission to drill is overturned.
Key Facts
- •Challenge to planning permission for oil well development in Surrey.
- •Dispute centered on whether EIA should include combustion emissions from refined oil used as fuel.
- •Oil extraction would inevitably lead to combustion and GHG emissions.
- •Council excluded combustion emissions from EIA.
- •High Court dismissed the claim, Court of Appeal affirmed by majority.
- •Appeal to Supreme Court.
Legal Principles
EIA Directive aims to ensure decisions on development consent are made with full information.
EIA Directive, R v North Yorkshire County Council, Ex p Brown [2000] 1 AC 397, 404; Berkeley v Secretary of State for the Environment [2001] 2 AC 603, 615.
Court interprets legislation; if authority misinterprets, it's an error of law.
R v Monopolies and Mergers Commission, Ex p South Yorkshire Transport Ltd [1993] 1 WLR 23
"Significant" in EIA Directive requires value judgment, allowing for differing rational conclusions.
Article 3(1) EIA Directive, R v Monopolies and Mergers Commission, Ex p South Yorkshire Transport Ltd [1993] 1 WLR 23
EIA must assess direct and indirect significant effects; indirect effects may occur through complex pathways.
Article 3(1) and Annex IV, para 5 of the EIA Directive
Causation is a question of fact and law; various tests apply depending on context.
Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22
EIA requires assessment of likely effects, based on sufficient evidence; conjecture and speculation are irrelevant.
Article 5(1)(b) and Annex IV, Article 1(2)(g) of the EIA Directive
EIA Directive imposes no geographical limit on effects to be assessed.
Annex IV, para 5 of the EIA Directive
Assumption that other regimes will mitigate effects doesn't remove EIA obligation.
R (Lebus) v South Cambridgeshire District Council [2002] EWHC 2009 (Admin); R (Champion) v North Norfolk District Council [2015] UKSC 52
National policy considerations are relevant to development consent but not to the scope of EIA.
Berkeley v Secretary of State for the Environment [2001] 2 AC 603
Outcomes
Supreme Court allowed the appeal.
Council's decision to grant planning permission was unlawful because the EIA failed to assess the effect on climate of combustion emissions, and the reasons for disregarding this effect were flawed.
High Court dismissed the claim.
Judge found assessment of combustion emissions incapable of falling within the scope of the EIA.
Court of Appeal dismissed the appeal (majority).
Majority held that whether combustion emissions are indirect effects was a matter of evaluative judgment for the council, and the council's reasons were lawful.
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