Legal

Breaking: legal challenge fails on climate impact of onshore oil production – but judges divided

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.

Campaigners from Weald Action Group, which supported Ms Finch’s case, outside the Royal Courts of Justice today. Photo: Weald Action Group

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.

60 replies »

  1. Look around you, well, maybe not so much in leafy tower where pontification from ivory towers, where the more affluent can contemplate their navels. In rural areas, and I don’t mean more than five miles from the M25, I mean the likes of rural Scotland, south west England, the north of Scotland where it is 20 miles to the nearest shop, what should we do, wait for a bus that comes twice a week?

    Electric cars can’t hack it.Push the pollution down the line so you can’t see it. Electric cars are not green. Have you any idea of the amount of energy, emissions, heavy metals pollution and danger there is in producing the materials for batteries alone? We are net consumers of energy because of the flat earth brigade. It is you that have ruined the energy balance not the oil companies. Every single one of us, including the oil industry, wants to move away from fossil fuels, they are far too important simply to burn.

    The next time you are in hospital, or at your doctor’s surgery or at your children’s school, look at the plastic used, guess where that comes from. Oh yes, no electricity, it is plastic that shields the copper wiring that enables you to boil a kettle or power the computers that you people use to post this drivel. Think it through, all the way from beginning to end and you might see the bigger picture.

  2. With respect for your comments, Gary, and thanks for your remarks on Zig’s posting, is it not the case that the big picture is the future of the planet, ourselves included, and our relationship to what we have been over-exploiting. No one can deny the benefits the FF industry has brought humanity, as you rightly point out, but it is also difficult to deny that our over-reliance on them has resulted in our blindness to the consequences of over-use and resultant failure to find alternatives in time to prevent the current crisis. The FF industry has done itself no favours in deliberately obscuring these facts, and it is unlikely that its motives are altruistic.
    No easy solutions then but we must continue to search for alternatives, renewables amongst them, but alive to the difficulties and dangers inherent in this search as well as to the risks of corruption and self-serving which will necessarily arise. FFs, for all their advantages, are condemned by their disadvantages and must be phased out, perhaps not best achieved by searching for and exploiting new sources.

    • The case is that the current situation is showing very clearly, that renewables are a long way from the answer. This is hardly surprising. It has been very clearly documented that even in UK that has invested a lot more than many countries in renewables, that fossil fuel would be required well past 2050. The real issue is the zealots just want to ignore that and are now sticking their heads in the sand when the birds come home to roost. Just more of the same approach, will produce more of the same result. Might make a lot of money for those promoting the stance, but to my mind, that is as corrupt and self serving as anything seen in the fossil fuel industry.

      Intermittent renewables relied a great deal upon back-up during 2021 and even coal had to come to the rescue. To enable nuclear to be that rescue requires several decades until it is able to do so and there the investment, or lack of, is nothing to do with fossil fuel. Indeed, the tax revenue from fossil fuel helps to enable that to happen. UK has to play catch up now thanks to the inaction from previous governments. Until that catch up kicks in, more and more renewables, in the shape of turbines, just means more and more idle when the wind doesn’t blow. And, Eunice is not predicted to be the norm. Winds across Europe are actually predicted to decline.

      And, sorry, but new sources for oil and gas will be searched for as transition to oil and gas is a positive step for many countries around the world, with growing populations. If that does not happen, then the cost of living deniers will have a full time occupation, as prices will continue to rise as demand continues to outstrip supply, and many will be forced to stick with coal.

    • Ignorance there 1720; so what your saying is we as a development society. Screw these who would want a developed society say the Africa nations, and you deny them that, ‘because we’re ok jack!’

      • On the contrary Eli-Goth. As I have said frequently in the past, the developing world must not suffer further. We are responsible for its predicament and we must pick up the tab in helping it to achieve a level of development equal to ours. The “screwing” them as you so eloquently put it must be part of our past not our future. We don’t help them by encouraging them to make the same mistakes we made to benefit primarily the FF companies obliged by the ethos of capitalism to maximise profits for their shareholders. The problems – and I don’t deny there are enormous problems in implementing such repayment of our debts – must be solved together, not by imposition. What remains paramount is that we cease damaging humanity and its home in our joint efforts. If this requires a new economic model, there is no shortage of ideas, as I am sure you are aware. The problem is public ignorance and as a result the public will, supported by spineless incompetent leadership.

        • Strange. There must be two 1720s!

          “Solved together, not by imposition”. Hmm. Somewhat different from when a discussion was going on about a developing country wanting to borrow money to develop their own resources-that would generate revenue for their own population. Maybe even the opportunity for a windfall tax! Some thought that helping them to do what they had decided to do rather than imposing that they couldn’t was a good idea. Some did not.

          And, no. “We” are not responsible for its predicament and “we” must pick up the tab. What a patronizing comment, as if these countries want someone else to pick up a tab. They simply want to help themselves. And, they certainly would not want to examine a balance sheet including what they owed to others for intellectual property that had been supplied.

          Yesterday one thing is true to “us”, the next day the opposite. No wonder there is employment for so many activists. I still prefer the influencer lot. At least they have to have a degree of consistency and coherence. Perhaps it is to do with money? The latter lot only get paid if they get buy in.

          The real problem, or reality, is that the majority of the public are not that ignorant.

          Are there any parts of humanity left, 1720, that you have yet to patronize?

          • To repeat myself – “As I have said frequently in the past, the developing world must not suffer further. We are responsible for its predicament and we must pick up the tab in helping it to achieve a level of development equal to ours.”
            It seems that some still deny this.

            “…..the desire
            of European powers to capture and exploit African resources played a key role in the transformative process of colonialism. The core characteristic of the colonial project was the alienation of natural resources and the imposition of new forms of centralized political authority over land and resources that previously had been controlled by more localized institutions. The expropriatory processes associated with the imposition of new forms of resource ownership and control occasioned the creation, or in some cases the exacerbation, of inequalities which have endured into the present day. Colonialism was about controlling natural resources, and many of the inequalities on the continent today are reflected in unequal access to the continent’s natural resources.
            Today, extreme global economic inequality is at
            an all-time high, largely as a result of corporate-led globalization. The causes of inequality are many,
            but are mostly located in the historical process of production and distribution. In Africa, while precolonial forms of inequality have influenced the continent’s encounter with colonialism and been reproduced
            and sometimes exacerbated in the colonial period, colonialism itself created new and more extreme forms of inequality that define the continent’s social condition today. Colonial dispossession, particularly pronounced in settler colonial societies (Boone and Moyo, 2012), has led to enclosures, created poverty, and exacerbated inequalities.
            The colonial state in Africa was established to control labour, capital and resources for external European purposes. This set of political objectives resulted in the concentration of central bureaucratic and executive power. The state’s powers of coercion were used
            to limit independent forms of social organization. Governance was not democratic, representative or accountable. States claimed wide powers over natural resources, particularly land, which was generally placed under discretionary bureaucratic control, with customary rights subordinated to claims explicitly recognized by the colonial administration. Even under indirect British rule, this meant concentrating fused executive, legislative and judicial powers in externally recognized local authorities which bolstered what Mamdani (1996) has called ‘the fist of colonial power’………..”

            Etc.

            (World Social Science Report 2016
            Inequality and
            natural resources in Africa)

            Our culpability is enormous and crystal clear.

            And this from Karen McVeigh, Guardian 24th May 2017-

            “More wealth leaves Africa every year than enters it – by more than $40bn (£31bn) – according to research that challenges “misleading” perceptions of foreign aid.
            Analysis by a coalition of UK and African equality and development campaigners including Global Justice Now, published on Wednesday, claims the rest of the world is profiting more than most African citizens from the continent’s wealth.
            It said African countries received $162bn in 2015, mainly in loans, aid and personal remittances. But in the same year, $203bn was
            taken from the continent, either directly through multinationals repatriating profits and illegally moving money into tax havens, or by costs imposed by the rest of the world through climate change adaptation and mitigation.
            This led to an annual financial deficit of $41.3bn from the 47 African countries where many people remain trapped in poverty, according to the report, Honest Accounts 2017.…….”

            Etc. Etc.

            • To repeat myself:

              And there are some who are still trying to control what the developing world do. Aren’t there, 1720?

              Not even allowed to make their own decisions. How patronizing.

              • Facts can be tricky: slurs (3 above) and the misuse of plastic come easy.
                And to answer your question again, yes, you’re right! The FF industry and its acolytes, denying, deviating and insinuating, would very much like to control what the developing world does. This is a tactic perfected over the centuries since first we began to subjugate the underdeveloped parts of the world, ensuring that their assets and profits came to us, a few crumbs left behind to keep them sweet, democracy preached to keep them in order and on board with our systems, railways built to service our requirements, (whilst undoubtedly and conveniently helping them). More sources are essential if this control is to be preserved. Yes indeed, there are still some seeking to control what the developing world does.
                Is pointing this out patronizing? Or is truth inconvenient?

                • It was yourself who was suggesting that loans should not be granted to a developing country who had decided a course of action themselves, 1720. Others, including myself, were stating our opinions that they can make their own decisions. And, that they should and will.

                  Yes, your approach is patronizing, a modern form of colonization, a desire to subjugate and seeking to control the developing world.

                  [Edited by moderator]

                  The only consistency, is that you appear to have a vendetta against railways! Which, in itself, is interesting, as without railways within the developing world there would be a huge increase in the use of the internal combustion engine. Yes, incoherent. But, nothing needs to add up, does it? Another inconvenient truth.

  3. From the Guardian Oct. 30 2021

    “ Shell and BP paid no corporation tax or production levies on North Sea oil operations between 2018 and 2020, and claimed tax reliefs of nearly £400m, according to annual “payments to governments” reports analysed by the Observer.

    Over the same three-year period, they paid shareholders more than £44bn in dividends.”

    • “It gets worse – according to Channel 4 News – who told us that these oil companies are also currently “receiving money from the taxpayer” to pay for decommissioning work as older North Sea fields cease production. Outrageous.

      Or so it appears, until a little context is placed around the claims, which are being pedalled by the campaign group Uplift.

      So here is that context. Currently oil and gas fields are ‘ring fenced’ for tax purposes and as such effectively operate as individual profit and loss centres. Each field therefore has its own ‘tax account’ within the tax system.

      Owing to the fact that decommissioning tax reliefs can only be claimed when decommissioning spends are incurred companies will, over their productive life, effectively have ‘overpaid taxes’ and so will be in a ‘tax credit’ situation at cessation of production.

      Filing for these tax reliefs in recent years when income streams have been low has attracted tax rebates against previous taxes on profits, paid in line with standard business taxation practises.

      The above can give the appearance that the government is paying towards decommissioning, but it is actually just a ‘rebalancing’ of the tax accounts. It is not cost, it is cashflow.

      What Uplift did, with a knowing wink, was juxtaposition annual global earnings of oil majors against aggregated UK tax paid over the latter stages of operation, which is not just unfair, but intentionally misleading.

      These reliefs should be viewed in the context of taxes paid over the lifetime of a field. The UK Government has received net tax revenues of over £330billion from the oil and gas sector since 1970, although the industry as “contributed nothing” according to Uplift. To me, it seems pretty clear that the industry has, in fact, made an unprecedented contribution to the UK Exchequer over the last 5 decades.

      A balanced report on Channel 4 would have also outlined that between £45billion and £77billion of decommissioning costs are being directly borne by operators, with a further £24billion of reliefs making up the smaller portion of the estimated bill (National Audit Office figures).

      Of this £24billion figure, £12.9billion is tax which has effectively been overpaid by operators and needs rebalanced, as outlined above.

      The rest of that sum (£11.1billion) is future tax revenue which will be forgone because of operators’ profits being reduced by decommissioning expenditure, which is classed as CAPEX. This is essentially monies that were never due, so to characterise them as having been paid out to oil companies is, again, misleading.

      An easy comparison would be the £12,570 personal allowance referenced earlier. Would you class this as money “paid to you” by the taxpayer, or tax you were never required to pay? It is, of course, the latter.

      The picture painted by Uplift was designed to support the flawed case for a windfall tax on North Sea operators.

      But it totally misses the point that these very same oil businesses are those that have the capital and are currently investing at scale in the new solutions like CCS, hydrogen and offshore wind that will see this country playing a leading role in the energy transition enabling carbon targets to be achieved.”

      https://www.heraldscotland.com/business_hq/19924030.russell-borthwick-case-windfall-tax-misses-point/

      • Paul

        Thanks. However the point will continue to be missed as uplift are more interested in hoodwinking people than explaining the truth.

    • Well that’s the UK treasury at fault there, 1720. But a company who works within the guidelines you slander for that?

      Do YOU pay more than your fair share in TAX? An honest question, as that is what your arguing, or maybe you should offset that tax by buying Shell or BP shares, as you see BP advances their North Sea wind arm; using all this tax saved investment in renewables!
      https://www.bp.com/en/global/corporate/news-and-insights/press-releases/bp-advances-offshore-wind-growth-strategy.html

  4. Not out of the N.Sea, 1720.

    Shell and BP make most of their profits elsewhere. There involvement in the N.Sea is pretty modest.

    That is the problem with international companies. The Guardian pander to those that are supposed to be ignorant of such facts, in order to create a false sense of injustice.

    Surely, you would not suggest that if Shell made large profits the other side of the world those poor folk should be robbed of potential income? The pink bits on the Atlas that used to depict just that sort of thing have gone.

    However, that is still followed for the supply of cobalt for EVs, without any dividend being paid by one particular company for a very long time, whilst the owner became the richest man in the world. Now, that does look like self serving.

    • Indeed MC:
      It’s a bit like the average Joe arguing the pharmaceutical companies are making too much money!, then realise they are the reason we have been able to live to the ripe old age of over 90 years old! Doh!, Activists, Anti’s and Protesters will always pick the low hanging fruit for their argument! Its a strange regime!

  5. So we are going to be transitioning to EV vehicles by 2030: (watch this and let me n is how we are going to get there!, (ROC child labour is a sad reality of the whole climate change battery phenomenon)!

    • Child labour may well be practised by the exploiters and this is deplorable. It is however not a necessary requirement for the mining of the minerals and those buying and commissioning have a moral duty to insist on proper regulated working conditions. The classic capitalist however gets everywhere.His/her repulsive practices are not redeemed by the social need for what is extracted. Another risk is over-extraction as in the case of fossil fuels and the search must continue for renewables without deleterious environmental or social effects..

  6. Except that in this case the classic capitalist comes largely in the form of the Chinese State!

    Yes, the search must continue-for reality rather than fake news.

    Meanwhile, I note there is concern about pollution in the oceans-from burning lithium batteries! Known about for some years but ignored-again-by some:

    “In the event of a lithium battery catching fire, it is important to note that such a fire reaches very high temperatures, produces toxic gases and is inextinguishable”.

    2013 German Federal Ministry of Transport, Building and Urban Development.

    So, another search may be required. Looking good for renewables so far? Nope. They are not the solution that some would suggest they are, and until they are the solution, pretending that they are will be shown to be more fake news and will set back the cause decades. People are reluctant to be fooled multiple times.

    • Fake news! Where? Need for regulation? Risk of over-exploitation? Shades of Trump.
      Is there any chance you will engage in the discussion? See 9.39pm on the 20th. for example. Perhaps too long? Or could you be wrong in your magisterial assertion – “And, no. “We” are not responsible for its predicament and “we” must pick up the tab.”
      Proof? Evidence? No, just ignore as inconvenient my subsequent justification of my argument which I think is a well accepted fact and produce another red herring – my supposed “vendetta” against railways. (For the record, and again, I have no vendetta against railways. I just think HS2 is a prestige project which will never justify the expenditure at a time of such pressure upon the finances. It’s not an article of faith, however, and I’ll be happy to be proved wrong. Do let me know when this happens, if you and I are still around.) My second reference to railways above, those constructed in the old colonies – usually adduced as an argument for the wonders the west has done for the world and conveniently forgetting the massive negatives – was intended solely to point to this fact, ie huge benefits for the exploiting colonists and some token gestures to the subjugated. Again, just to clarify – railways are a good thing for all kinds of reasons. Just don’t think you can absolve the developed world from its responsibilities to the developing world with such or similar arguments, or indeed with unsubstantiated allegations of the term patronizing – I seek only to argue against weak and ad hominem arguments. If you find such patronizing then the fault does not lie with me.
      Do please however stick to the point at issue.

      • Oh, I did stick to the point,1720. The point you had made previously. Which was contradictory to the point you subsequently made. I realize that is what you do, but I will continue to note it. If you can not be bothered to keep some semblance of consistency that fault lies with you.

        I shall also recall your point about pressure upon the finances when you come forward with the need to spend huge amounts of money on unproven schemes. Tough, isn’t it, when it all needs to add up? A prestige project? Depends on your calculation. There is a perfectly good example of high speed rail just over the Channel. When that was pointed out to you, what was your reaction? Dismissal and deflection.

        And before you descend into the teacher defense, then I would point out that many in the developing world are more educated than you or I. They are able to make their own decisions.

        When you get the Italians (eg. Romans) or the Egyptians, agreeing to pay for their impact upon the undeveloped world, then who knows where it will end. Until then, it is Student Union stuff loved by the activist, but not a well accepted fact.

        • QED

          Fake news! Where? Need for regulation? Risk of over-exploitation? Shades of Trump.
          Is there any chance you will engage in the discussion? See 9.39pm on the 20th. for example. Perhaps too long?

  7. Indeed Martin: I was drawn to the EV lithium battery phenomenon and the target by the UK to ban all fossil fuel cars by 2030.
    One such event which troubled me was the Grand Tour episode which showcased the Rimac Concept One which Richard Hammond hillclimbed in Switzerland, at the end of him run the car encountered a tyre failure, it then round down a grass knoll and burst in to flames! A car which had a Battery consisting of 90 kWh Lithium nickel manganese cobalt oxide (LiNiMnCoO2) chemistry. It shouldn’t has combusted quite the way it did, but not only was it perceived as a green EV, it had oil coolers on each wheel hub to aid with cooling, it was these oil coolers which ruptured and dripped on to the hot wiring of the EV causing the fire which lasted for 5 days straight according to James May!
    Now imaging taking the 250 million cars the US has currently on the roads, and replacing them with this scenario! and the percentage of burn, this lithium, cobalt, graphite in the atmosphere, water ways and floating over human and animal consumption crops??

    You have a situation 100 worse than the current FF era!!
    EV’s are not the solution, they are part of the continuous problem!

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