The climate impact of using fossil fuels must be assessed before any decision is made on production plans, a landmark challenge at the Supreme Court argued today.

Lawyers for campaigner Sarah Finch, who brought the case, said:

“Extraction of hydrocarbons for commercial purposes are destined for combustion, which inevitably causes greenhouse gas emissions.”

The challenge seeks to overturn a majority ruling at the appeal court last year. If successful, it would have have major implications for future fossil fuel projects, including a new coal mine in Cumbria.

Key facts about the case and why it is important

The case centres on a decision by Surrey County Council about the environmental impacts of oil production at the Horse Hill site near Horley.

In 2018, the site operator, Horse Hill Developments Ltd (HHDL), was preparing a planning application for 20 years of oil production and four new wells.

The council decided HHDL’s environmental impact assessment (EIA) must include the greenhouse gas emissions from the process of production at Horse Hill – estimated at 112,000 tonnes of CO2 equivalent.

But, after correspondence with HHDL, the council ruled there was no need for the EIA to include emissions from using the oil, estimated at more than 10 million tonnes of CO2e, also known as indirect or downstream emissions.

A year later, the council approved the Horse Hill proposals.

Estelle Dehon KC and Marc Willers KC, for Sarah Finch, said:

“the grant of planning permission based on a complete absence of any assessment of the unavoidable indirect effects on climate of the inevitable burning of the extracted petroleum was unlawful.”

They said:

“Such downstream greenhouse gas emissions are required to be assessed at the point of fossil fuel extraction by a growing body of national courts around the world.”

If the Court of Appeal decision was upheld, it would leave the United Kingdom as an “outlier”, they said. Decision-makers would, they said, be able to grant permission for commercial fossil fuel production without the climate impact of the development ever being subject to a full environmental impact assessment.

They said the appeal court had been wrong in law to exclude end-use emissions from an EIA because they depended on intermediate processes, such as refining and distribution of the oil, that may take place elsewhere.

They said the appeal court was also wrong to rule that:

• the decision on including end-use emissions in an EIA was at the discretion of local authorities and not the courts, and
• end-use emissions were a material consideration in a planning decision but not an indirect environmental effect

Ms Dehon and Mr Willers said:

“It is an error of law to permit the wholesale omission of assessment of a likely significant indirect effect from every part of the EIA process.

“The question raised in this appeal is not a political question. The Appellant is simply asking this Court to apply the words of the EIA Regulations as they stand, to the world as it is.”

Council response

Harriet Townsend, for Surrey County Council, defended the appeal court ruling.

She said burning the oil was not an indirect effect of the Horse Hill production scheme:

“If you build a major factory, you don’t assess the effect of the product that the factory sells.”

She said:

“It is known that combustion will take place when oil has been extracted, refined, distributed and sold.

“That fuel will form part of the international supply, indistinguishable from that from many other sources.

“Emissions will occur at some point in the future. But nothing is known about when, where or in which circumstances they will occur. Those facts cannot be known.”

Ms Townsend said the definition of “project” was the key to the case.

“The project is only the extraction of oil, and the commercial purposes for which it is extracted are those of the ‘extractor’ – not those of the ‘refiner’, nor those of the petrol station, nor those of the person driving the car which may one day – somewhere in the world – burn the product created from the crude extracted from the site.”

David Elvin KC, for HHDL’s owner, UK Oil & Gas plc, also defended the appeal court ruling.

He said scope 3 or end-use emissions were “not an EIA concept”:

“It is really a red herring. It is a matter for accounting for emissions.”

He said the “inevitability” of combustion related to the fuel produced at the end of the refinery process:

“Crude oil cannot be used for combustion, without going through the refining process. It cannot be used directly itself.”

Mr Elvin continues his case tomorrow morning, followed by lawyers for the levelling up secretary.

Reporting from this case was made possible by donations from DrillOrDrop readers

Key facts about the case and why it is important

Pictures: Campaigners gather outside the Supreme Court