“According to the United Nations Environment Programme… close to 90% of global carbon dioxide emissions stem from burning fossil fuels.”
A local authority was required to conduct an environmental impact assessment (EIA) before granting planning permission to expand an oil mine, which it did.
The UK Supreme Court in London (UKSC) recently considered whether the “downstream” emissions produced once the extracted oil was burned should have been included in that EIA.
Background
The proposal involved extracting oil from six wells in Surrey over a 20-year period. The local authority considered the local impact of the extraction, and planning permission was granted.
A local resident applied for judicial review of that decision, contending that the EIA should have included an assessment of the combustion emissions but didn’t. The High Court and the Court of Appeal rejected her argument, and she appealed to the UKSC.
Judgment
By a 3:2 majority, the decisions of the lower courts were overturned. The local authority’s grant of planning permission was unlawful. The EIA should have considered the greenhouse gas emissions from the subsequent burning of the extracted oil. These emissions would be “direct or indirect effects” of the project and, therefore, must be assessed within the EIA.
“The combustion emissions are manifestly not outwith the control of the site operators. They are entirely within their control. If no oil is extracted, no combustion emissions will occur. …It is true that the time and place at which the combustion takes place are not within the control of the site operators. But the effect of the combustion emissions on climate does not depend on when or where the combustion takes place. Those factors are irrelevant to the size and significance of the environmental impact”
In a dissenting opinion, Lord Sales noted that local planning decisions were often made by local authorities, with downstream emissions managed nationally. This presented the potential for conflict between local and national decision-makers.
Comment
The UKSC has adopted a broad interpretation of how emissions should be assessed in EIAs. Downstream considerations will be paramount for new fossil fuel projects, including oil, gas, and coal.
This may have implications for the current judicial review of the planning consent for the Whitehaven site in Cumbria. Watch this space…
For more information about this article or any other aspect of renewables and energy, get in touch with your Napthens Solicitors in Preston, Blackburn, Kendal and across the North West, today.
