The Court of Appeal was recently asked to consider whether Environmental Impact Assessment scoping should include the indirect green house gas emissions arising from an extension to a commercial oil well in the Surrey Wealds. Under the proposed scheme the extracted oil was to be transported offsite for refining and thereafter use as an end product.

Background

Most sizeable developments and projects are EIA developments. EIA developments are developments that require an Environmental Impact Assessment under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017, being regulations requiring the assessment of the environmental effects of these developments.

The EIA procedure begins with the developer requesting the local planning authority ‘scope’ the Environmental Statement (ES). This ‘scoping’ set out to the developer the various impacts of the development that must be described in the ES. If there is disagreement as to the adopted scoping opinion from the local authority then there is a procedure for securing a scoping direction from the Secretary of State.

The scoping is important because the ES become the central part of the environmental information to be taken into account in the determination of the developer’s planning application. If the impacts of a likely significant effects are not taken in determination of the application, such an omission can be a point of challenge after the decision has been made. On the other hand an ES scope that is too wide is a costly and time-consuming irrelevance.

The term ‘scope’ also features in context of environmental reporting by organisations committed to measuring their climate change impacts from their green house gas (GHG) emissions. Under the GHG Protocol Scope 1 emissions are those direct emissions from controlled or owned sources directly under the organisation’s control. Scope 2 emissions are the indirect emissions from the energy the organisation purchases, generated at sources outside the organisation’s direct control. Scope 3 emissions are other indirect emissions that are a consequence of the organisation’s actions, which occur at sources which the organisation does not control.

The Court of Appeal decision

All parties recognised that it is inevitable that the oil produced from the site will be refined and, as an end product, will eventually undergo combustion, and that that combustion will produce greenhouse gas emissions. Nevertheless, and with the approval of the planning authority, the ES accompanying the application confined itself to the direct GHG emissions (Scope 1). The appellant argued that the ES’ scope should extend beyond the boundary of the drilling site to include the indirect emissions from the refining process and its end-use as a combustion fuel (Scope 2 and 3).

The Court (with one judge dissenting) held that what needs to be considered by the decision-making authority is whether a particular environmental impact is “an effect of the development for which planning permission is sought”. Whether an impact should be included in the ES requires consideration of the degree of connection between the development and its putative Scope 2 and 3 effects was a classic question of fact and judgment for the decision-making authority.

So an EIA must address the environmental effects, both direct and indirect, of the development for which planning permission is sought (and also any larger project of which that development forms a part), but there is no requirement to assess matters which are not environmental effects of the development or project. The fact that certain environmental impacts are inevitable may be relevant to the question of whether they are “effects of the proposed development”. In some cases, the inevitability of those impacts might make it more likely that they are effects of the development. But it does not compel the conclusion that they are, in fact, such effects. The majority of the Court concluded it was right to exclude these Scope 2 and 3 emissions from the ES.

The Court made it clear that in different circumstances involving the extraction of hydrocarbons the downstream impacts might properly be regarded as indirect effects on the environment that should be in the scope of the ES.

The judgment in R. (on the application of Finch) v Surrey CC [2022] EWCA Civ 187 was handed down on 17 February 2022

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at February 2022. Specific advice should be sought for specific cases. For more information see our terms & conditions.

Written by

Fergus,Charlton,tlt

Fergus Charlton

Date published

22 February 2022

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