The government’s new environmental watchdog has been on the opposite side of the legal argument from a minister in its first court case.
The Office of Environmental Protection (OEP), set up in 2021 to hold government to account, intervened in a landmark legal challenge at the Supreme Court on the climate effects of oil extraction.
It called on the five justices hearing the case to clarify the law.
The OEP’s submission was welcomed by lawyers for Sarah Finch, a campaigner who brought the case to overturn consent for 20 years of oil production at Horse Hill in Surrey
But legal teams for the levelling up secretary and the site operator, Horse Hill Developments Limited (HHDL), criticised the OEP’s submissions to the court.
Counting carbon
The one-and-a-half day hearing focused on Ms Finch’s argument that greenhouse gas emissions from the use of Horse Hill oil should be regarded as an indirect effect of oil production at the site.
Her lawyers said Surrey County Council acted unlawfully in 2018 when it decided these emissions did not have to be considered in the environmental impact assessment (EIA) for Horse Hill oil extraction.
The high and appeal courts both rejected her arguments.
The OEP said it was not taking sides at the Supreme Court. It said it was “simply concerned to ensure that the law is clear and effective in ensuring public participation and protecting the environment”.
But, in its submission, the watchdog said rulings by the appeal and high courts could have “an adverse effect on sound environmental decision making” and environmental protection.
The rulings risked “inconsistent decisions” across the country and “repeated litigation” in future, it said.
Appeal court ruling
The levelling up secretary and HHDL supported the appeal court ruling.
They said emissions from the end use of the oil were not indirect effects because the oil had to be refined before it could be burned.
This was a separate process, often beyond the control of the developer, and was likely to happen at a different location, possibly in another country, they said.
They also said it was impossible to assess accurately at the production stage what the greenhouse gas emissions would be when they were burnt.
They agreed with the appeal court ruling that indirect effects were a matter for planning judgement, not the law.
David Elvin KC, for HHDL, told the court this morning:
“end-use emissions in the present case are legally incapable of constituting ‘effects’ of the development”.
Richard Moules KC, for the secretary of state, said:
“The effects have to be tethered to the project and be intrinsic to it.”
Mr Elvin said the OEP had misunderstood the roles of the courts and the planning decision maker and “appears to wish to impose a greater degree of rigidity into the system which is not justified”.
Mr Moules accused the OEP of misreading the appeal court’s ruling when it sought to intervene in the case.
“Failure to assess emissions deprives public of valuable information”
In its case, the OEP said:
“The failure to assess indirect effects and greenhouse gas emissions where it can feasibly be done deprives decisionmakers and the public of valuable information and impairs the quality of the ultimate decision.”
The OEP said emissions from the use of extracted hydrocarbons appeared to be an indirect effect of extraction.
It was “wrong as a matter of law”, it said, to exclude them because of arguments that there would be other processing or regulation or that the emissions happened away from the site at another time.
The OEP said it was also wrong in law to argue that something could not be an indirect effect if the developer did not have control over it or if there were later opportunities to control it. It said:
“This would be contrary to the objective that EIA should take place at the earliest possible stage.”
The OEP added:
“It is plainly wrong to suggest that simply because it may be more difficult to assess these emissions than more obvious direct ones, no attempt should be made at all.”
The OEP said the meaning of ‘indirect effects’ should be a matter of law. It said:
“It would therefore be helpful if the UK Supreme Court could lay down some clear principles on the meaning of ‘indirect effects’ in the context of this case and more generally.”
A ruling in the case is expected in three to six months. If Sarah Finch is successful, the case will have major implications for fossil fuel developments in the UK.
Reporting from this case has been made possible by donations from DrillOrDrop readers
DRILL OR DROP? 
Finding against the legal challenge using the arguments put forward for HHDL and the government, would effectively state that fossil fuel extraction companies have no responsibility whatsoever for the adverse consequences of their activities on climate change. This is patently absurd.
Hmmm, so the same would apply to your use of a plastic keyboard, Malcolm?
That is patently absurd, but that is within the Pandoro’s Box that would be opened.
How about the responsibility for producing fertilizer to help feed an expanding population, or the huge amount of product used by the medical profession world wide? Something else which would emerge from that Pandoro’s Box. How about the huge numbers of people who live because fossil fuel allows rescue and recovery after a natural disaster? Life expectancy downstream since the use of fossil fuel?
For those who want one aspect downstream considered, the Box when opened, would require all.
Pandora, Martin.
Not for the first time, but it seems to be necessary for some. Few of those arguing against the incoherent policies of HMG , which advocates the rapid phasing out of FFs whilst at the same time seeking to develop and exploit new sources of the same, believe that humanity has not benefited from FFs – ( the crass keyboard argument, etc.)
They simply argue that the disadvantages of exploiting are now clear and so serious that new answers to our energy needs must be developed which have a lesser deleterious effect upon human beings and our planet.
I hope this makes the quandary a little clearer.
Not until someone comes up with a solution that adds up, 1720. Until that is the case then what works is the solution. Not for all time, but see sentence one.
Having observed your previous where an expert on the subject clearly defined what was needed, now agreed to have been correct, and should have been done many years ago, your “clarity” was to suggest he would have changed his mind after he died. Even when everything now points to him being correct. Now, what is clear from that is someone wants to deny reality and that is no clarity to the quandary, simply a diversion. Exactly the same reason why the expert was not followed when he should have been.
If Sarah loses her case, it will just show how badly out of step the law is with the scientific reality of climate chaos.
Exactly right alex9391 and of course the government is responsible for lawmaking, the courts can only interpret and administer the law. If Sarah does lose I hope at the very least the hypocrisy and outdated laws relating to fossil fuel development will be highlighted so the public may finally see through the veneer and understand the government’s sham commitment to tackling climate change.