An environmental campaigner who brought a legal challenge over the climate impact of onshore oil production is considering taking her case to the Supreme Court after a divided ruling from judges.
Appeal court judges were split over the claim by Sarah Finch that carbon emissions from burning oil in cars and planes should be taken into account when deciding whether to allow hydrocarbon extraction.
One of the three judges, Lord Justice Moylan, allowed the appeal but rulings by Lord Lewison and Sir Keith Lindblom dismissed the case.
Ms Finch is considering an appeal to the Supreme Court.
Her long-running legal battle centred on the Horse Hill oil site in Surrey. But if she had won, the result could have had big implications for many carbon intensive industries.
In October 2017, Surrey County Council granted planning permission for oil production and more wells at Horse Hill.
Ms Finch, who lives near the site, argued that the council should have assessed the greenhouse gas emissions from the use of any oil extracted, known as downstream or scope 3 emissions.
The council responded that it needed only to consider the direct emissions from the operation of the site.
Ms Finch said this afternoon:
“I’m dismayed by this judgment – but reassured it was not unanimous.
“The judges agreed it’s inevitable that oil produced at Horse Hill will eventually be burned, and that will produce greenhouse gas emissions. The fact that even senior judges can’t agree on whether these ‘downstream’ emissions should be assessed in the planning process shows that we need legal certainty on the issue. How can planning authorities be expected to know what to do when even judges don’t agree?
“Every tonne of carbon dioxide emitted will make the future situation worse – and more than 10 million tonnes could be produced as a result of this development.”
A Surrey County Council Spokesperson said:
“We note the judgement that our planning decision was lawful. We will review and consider the full findings of the judgement in due course.”
The chief executive of UKOG, Stephen Sanderson, said:
“I’m delighted that justice has again prevailed for UKOG in this matter. This latest judgment in UKOG’s favour comes after more than two years in which Finch et al have sought to stop the Company’s oil production at Horse Hill. Given that during this time five judges have found against their case, one cannot help but wonder why they have been permitted so many repeated bites at the same legal cherry. That seems at very least unfair and perhaps is also somewhat unjust.”
Lord Moylan said in his judgement that planning permission had not been granted lawfully because Surrey County Council had failed to consider downstream emissions in an environmental impact assessment (EIA). He said:
“the fact that the EIA failed to identify, describe and assess the “scope 3” or “downstream” greenhouse gas emissions which will be produced through the commercial use of the oil extracted from the well site means that the EIA failed to assess the relevant and required effects of the proposed development.
“As a result, the EIA does not comply with the requirements of the EIA regulations and planning permission cannot lawfully be given.”
But Sir Keith Lindblom, the senior president of tribunals, ruled:
“I do not think there was any unlawful inconsistency or divergence of approach in the decision-making process as a whole.”
He said it was up to the county council, not the courts, to decide whether to consider the downstream emissions:
“It was for the county council – not now to be second guessed by the court – to decide whether, in addition to the assessment of greenhouse gas emissions generated on the application site, a further assessment should be required covering the impacts of the ultimate consumption of refined products of the crude oil extracted by the proposed development.”
He said he could not agree with Ms Finch’s argument that the downstream emissions were sufficiently connected to create an obligation in law that required their assessment.
The third judge, Lord Justice Lindblom, agreed with Sir Keith’s ruling but with some reservations. Lord Lindblom said:
“What I have found more difficult is the question whether the decision that Surrey CC in fact took was a lawful one.”
He said the council had not “completely ignored the potential global warming effect of the proposed development”.
“Whether the downstream greenhouse gas emissions were or were not to be regarded as indirect effects of the project was a question of judgment for Surrey CC. Although it would have been preferable for more explicit consideration to have been given to that question, I have concluded (not without hesitation) that the reasons just about pass muster.”
The campaign network, Weald Action Group, and Friends of the Earth supported Ms Finch. Her case was funded by internet appeals, auctions and sponsored walks and cycle rides.
Katie de Kauwe, lawyer for Friends of the Earth, said:
“This split judgement highlights that there is not agreement, even amongst senior judges, over questions of law relating to climate change.
“We are pleased to see that the Court of Appeal has expressly recognised that end-use emissions from fossil fuel developments are capable of scientific assessment in Environmental Impact Assessment, and that the legislation allows planning authorities to consider them.
“However, we do not believe that the majority decision by the Court of Appeal goes far enough. We wholeheartedly agree with the conclusion of Lord Justice Moylan, who gave the dissenting judgment in this appeal, that Surrey County Council could and should have considered the inevitable end-use emissions arising from this fossil fuel development.
“Planning authorities must play their part in confronting the climate crisis, or the planet will continue to hurtle towards catastrophe.
“Friends of the Earth is proud to have supported Sarah Finch in this crucial legal battle and will continue to do so if she appeals and this case goes to the Supreme Court.”
Rowan Smith, environmental law solicitor at Leigh Day, which represented Ms Finch, said:
“Our client’s courageous campaign to protect the environment from the climate crisis has been rewarded: there is now Court of Appeal authority that, when decision-makers come to consider granting planning permission for fossil fuel projects, they may be required by the law to be assess the greenhouse gas emissions from the use of the extracted oil, coal or gas.
“This is a hugely important legal victory in the context of wider climate change litigation in the UK. Nevertheless, we consider that the overall judgment, given in the context of UK’s obligations to make urgent and deep cuts to carbon emissions in order to reach net zero by 2050, is flawed and we are advising our client on an application to the Supreme Court for permission to appeal.”
The council’s case was supported by the site operator, Horse Hill Developments Limited, a subsidiary of UK Oil & Gas plc, and the then Department of Communities, Housing and Local Government.
More details from the judgement to follow soon.