CSDLP Climate Litigation Review Series – R (Finch) v Surrey County Council and Others – Part 1 of 3

R (Finch) v Surrey County Council and Others

1. Introduction

Climate change and the energy transition have become a topic of utmost importance not just for governments but also for individuals and industry stakeholders. The science highlighting the effects of climate change is clear and unambiguous, with calls to governments and individuals to take direct action and to be conscious of the extent to which their inaction could impact climate goals and the lives of future generations.

This case analysis explores the UK Supreme Court (UKSC or the Court) judgement in R (Finch) v. Surrey County Council & Ors[1] that found that the planning permission for an oil well in Surrey was unlawful for failing to assess the downstream greenhouse gas (GHG) emissions (so called scope 3 emissions) that will inevitably arise from combustion after the crude has been refined.

In reaching its decision, the UKSC considered the provisions of the European Union EIA Directive[2] as well as the EIA Regulations 2017.[3] The judgement underpins evolving judicial perspectives with the potential to further expand and provide clarity with respect to the scope of existing regulatory instruments.[4] The Court further noted that the fundamental principle underscoring the EIA Directives and EIA Regulations by extension, is to ensure that:

“Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out.”^[5]

This case analysis commences by setting out the background of the case, discusses the pertinent issues the Court addressed, and closes by highlighting some future implications of the judgement. The analysis also attempts to draw a comparison with other judgements on similar cases.

2. Facts of the Case

The claimant (Sarah Finch), representing the Weald Action Group, filed a judicial review claim against the Surrey County Council’s (the Council) decision to grant planning permission for the expansion of an existing site to include four new crude oil wells over a period of twenty years for commercial production (the Project). The EIA Regulations requires that the relevant planning authority (the Council in this instance), should not grant planning permission, unless an EIA has been carried out in respect of that development. The defendants included the Council, the Developer, and the Secretary of State for Levelling Up, Housing, and Communities. 

The Developers’ Environmental Statement (ES) indicated that direct GHG emissions associated with the Project had been assessed, however, the ES did not include an assessment of GHG emissions that would result from end user combustion of the finished product. Essentially, the Developer only provided information on the effects that the operating the site would likely have on its immediate environment.

The claimant instituted an action, challenging the Council’s decision, to grant planning permission without complying with the obligations of the EIA Directive and Regulations to assess indirect effects of the project namely, the combustion emissions “likely” to result from the oil to be produced.  According to the claimant, the failure of the Council to consider the emissions in granting planning permission was in breach of the obligations of the UK under the EIA Directive[6] implemented in the UK through the EIA Regulations. Further, the claimant contended that emissions arising from the consumption of the product ought to have been considered in alignment with the climate commitment of the UK, especially its Net Zero target.[7]

The Council granted planning permission for the development of the project based on its evaluative judgement, that the development would not give rise to significant effects on the climate by way of GHG emissions “directly attributable” to the operation of the project. The decision essentially challenges this perception of the lack of a causal chain between the commercial extraction of crude oil and the inevitable resulting GHG emissions.

Decision at the High Court

At the High Court, the claim was dismissed with the judge concluding that it would be difficult to accommodate an assessment of GHG emissions from future combustion of the oil products within the provisions of the EIA Directive and the 2017 Regulations for the purposes of the planning permission. In other words, the assessment of the combustion emissions was, as a matter of law, not capable of falling within the scope of the EIA required by legislation. This decision hinged on the rationale that the intention of the legislation could not possibly be to include the environmental impacts on end consumers in unknown locations, using a finished product that would undergo an intermediate process of refinement in a separate facility, completely unrelated to the project site and outside the location and control of the Developer (making the Developer responsible for all end user consumption choices beyond its control). This decision turned on the judicial determination that evaluating GHG emissions on a global scale was an extremely complex matter and not within the contemplation of the scope of the EIA Regulations as it relates to local projects within the UK.

The judge also held that alternatively, even if the matter fell within the contemplation of the EIA Regulations, it was within the Council’s powers to exercise its evaluative judgement on the facts of the matter, in determining that end user combustion emissions were not indirect effects of the project. The judge however acknowledged the inevitability that oil produced from the site will be refined, undergo combustion, and will contribute to GHG emissions.[8]

At the Court of Appeal, the majority, which included Lewison LJ and Sir Keith Lindblom, decided that the decision of the Council granting planning permission without the EIA considering downstream/end-use GHG emissions was lawful.

However, the Court of Appeal did not agree with the primary ground of judgement at the High Court – that the assessment of the combustion emissions was, as a matter of law, not capable of falling within the scope of the EIA required by the legislation. The Court of  Appeal held the position that it was not proper to say that the assessment of combustion emissions was incapable of falling within the scope of the EIA required by legislation.

Rather, the Court of Appeal endorsed the alternative judgement of Holgate J., that the question of whether the end user combustion are effects that could be said to arise from the project was a matter subject to the evaluative judgement and discretion of the Council which had accordingly taken a reasoned decision.  In arriving at its decision, the Court of Appeal examined the question of a sufficient causal connection between the crude extraction and the end user combustion emissions, given the series of intermediate steps and processes dissociated from the crude extraction to achieve the end product. In the Court’s view, the uncertainty due to the series of intervening stages in production/refinement outside of the Developer’s control which could break the chain of causation, made it difficult to say with certainty that the combustion emissions were indirect effects of the project.[9] Lord Moylan in his dissenting judgement, however held that the Council’s decision was unlawful.

Subsequently, the Appellant further appealed to the United Kingdom Supreme Court (UKSC), contending that on the proper interpretation of the legislation, the “effects of the project” on the climate which the Council needed to assess as part of the EIA ought to include the downstream GHG combustion emissions.[10]

3. Case Analysis – UKSC

The substantive issue for determination before the UKSC was:

Whether the EIA Directive and the 2017 Regulations require EIAs for crude oil extraction to consider the GHG emissions and include an assessment of impacts that arises from emissions resulting from downstream/end user of the product? Consequently, was it lawful for the Surrey County Council to exclude the combustion emissions in the EIA for the proposed project?

The appeal was before Lord Kitchin, Lord Sales, Lord Leggatt, Lady Rose, and Lord Richards, with Lord Legatt delivering the lead judgement.

The lead judgement extensively examined the relevant provisions of the EIA Directive and EIA Regulations and amongst other things, painstakingly reviewing the scope of application of the legislation, reasoned intent of the legislations and intended consequences, and the test of causation, establishing causation in relation to the “likely” effects of the project in this case.

The Supreme Court was unanimous in deciding that the proper question to be answered was a matter of law. In the view of the Court, what amounted to ‘effects of the project’ was a question of proper interpretation of the EIA Regulations, and was not a matter of judgement to be left to individual authorities.^[11]

Causation and Effects

In determining the question of effects of a project, the Court looked at causation as the foundational principle to examine. The UKSC applied the strongest possible test of causation- necessity and sufficiency (where X is both necessary and sufficient to bring about Y) -which requires the occurrence of an event to be both a necessary and sufficient condition for the occurrence of another.[12] It was determined that there is overwhelming scientific evidence and factual certainty that burning fossil fuels would release GHGs into the atmosphere.  It was also an established fact in this case as the parties had agreed that the crude extraction would initiate a causal chain inevitably resulting in combustion of oil and release of GHGs. The extracted crude would be refined for consumption so that it would necessitate the inevitability of being burnt as fuel. This is sufficient to guarantee release of GHGs in end use.

In this respect, the Court’s approach, aligns with Minnerop and Otto’s assertion that the traditional “but for” or “conditio sine qua non” inquiries used to establish causal relations are inadequate to develop legally meaningful causal explanations in the climate change context.[13] The authors opine that the proper test in assessing a causal chain in climate change science are a combination of the criteria of necessity and sufficiency which the UKSC applied above,[14] and that these criteria must sometimes be supplemented by a third criterion of sustenance to account for a contributing factor.

Direct vs Indirect Effects

The Court using the European Commission 2013 Guidance[15]  defined  “direct effects” as:

“Environmental effects directly caused by the preparation, construction or operation of a project in a particular location.”

Indirect effects/impacts” were defined as:

“Effects/impacts that occur away from the immediate location or timing of the proposed action, e.g. quarrying of aggregates elsewhere in the country as a result of a new road proposal, or as a consequence of the operation of the project….”.

Applying the definition of indirect effects per the 2013 Guidance on the EIA Directive, the UKSC held that combustion emissions were indirect effects of the project.

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*Special thanks to Professor Petra Minnerop (Director, CSDLP) for comments on an initial draft of this review. All opinions expressed and any errors are those of the author.

[1] R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council and Ors (2024) UKSC 20

[2] Directive 2011/92/EU of the European Parliament as amended by Directive 2014/52/EU

[3] Town and Country Planning (Environmental Impact Assessment) Regulations 2017

[4] Ranjitsinh v Union of India (2024) INSC 280, https://webapi.sci.gov.in/supremecourt/2019/20754/20754_2019_1_25_51677_Judgement_21-Mar-2024.pdf; Friends of the Earth v TotalEnergies (2020) https://climatecasechart.com/non-us-case/friends-of-the-earth-et-al-v-total/#:~:text=Although%20the%20claimants'%20report%20focuses,was%20filed%20was%20not%20competent. 

[5]  R (Finch) v Surrey County Council (n1)

[6] EIA Directive (2011/92/EU)

[7] R (Finch) v Surrey County Council (n1)

[8] ibid (n1) Pg 16, Para 127, 132

[9] Ibid (n1) para 132, 135.

[10] Ibid (n1) 44.

[11] CMS Annual Review of Developments in English Oil and Gas Law (2024) 95.

[12] Ibid (n1) 80.

[13] Petra Minnerop and Friederike Otto, Climate Change and Causation: Joining Law and Climate Science on The Basis of Formal Logic (2020) 27 Buff Envtl LJ, 49 < https://ssrn.com/abstract=3522519> accessed 15 May 2025

[14] ibid

[15] European Commission: Directorate-General for Environment, Collingwood Environmental Planning Ltd, Integra Consulting Ltd & Milieu Ltd. (2013). Guidance on integrating climate change and biodiversity into environmental impact assessment. Publications Office. https://data.europa.eu/doi/10.2779/11735. Accessed 16 May 2025

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Other Sources:

African Climate Alliance and Others v The Minister of Mineral Resources and Energy and Others (56907/2021) [2024] ZAGPPHC 1271

CMS Annual Review of Developments in English Oil and Gas Law (2024), available at < https://cms.law/en/gbr/publication/cms-annual-review-of-developments-in-english-oil-and-gas-law-2024> accessed 14 April 2025

EarthLife Africa Johannesburg v. Minister of Environmental Affairs & Ors [2017] ZAGPPHC 58 (2017) 65662/16

European Commission: Directorate-General for Environment, Collingwood Environmental Planning Ltd, Integra Consulting Ltd & Milieu Ltd. (2013). Guidance on integrating climate change and biodiversity into environmental impact assessment. Publications Office. https://data.europa.eu/doi/10.2779/11735. Accessed 16 May 2025

European Parliament EIA Directive (2011/92/EU) as amended by Directive 2014/52/EU

Friends of the Earth v TotalEnergies (2020), available at <https://climatecasechart.com/non-us-case/friends-of-the-earth-et-al-v-total/#:~:text=Although%20the%20claimants'%20report%20focuses,was%20filed%20was%20not%20competent.>  accessed 22 April 2025

Greenpeace Limited v Advocate General [2021] CSIH 53, available at <https://www.scotcourts.gov.uk/media/ruzj2kng/court-of-session-judgement-appeal-by-greenpeace-limited-against-the-advocate-general-and-another-and-bp-exploration-operating-company-limited-and-another-07-octobe.pdf> accessed 1 May 2025

Greenpeace Ltd vs Secretary of State for Business, Energy and Industrial Strategy & Ors [2025] CSOH 10, Outer House, Cout of Sessions, Scotland <https://www.scotcourts.gov.uk/media/v0zkbsxy/2025csoh10-petitions-by-greenpeace-limited-and-uplift-for-judicial-review.pdf>

Petra Minnerop and Friederike Otto, Climate Change and Causation: Joining Law and Climate Science on the Basis of Formal Logic (2020) 27 Buff Envtl LJ, 49 < https://ssrn.com/abstract=3522519> accessed 15 May 2025

R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council and Ors (2024) UKSC 20

Ranjitsinh v Union of India (2024) INSC 280, https://webapi.sci.gov.in/supremecourt/2019/20754/20754_2019_1_25_51677_Judgement_21-Mar-2024.pdf;

Town and Country Planning (Environmental Impact Assessment) Regulations 2017

Jean-Claude N. Ashukem, ‘Setting the Scene for Climate Change Litigation in South Africa: Earthlife Africa: Johannesburg v Minister of Environmental Affairs and Others [2017] ZAGPPHC 58 (2017) 65662/16’ 13/1, Law, Environment and Development Journal (2017) vol 13:1, 37 - 41, available at http://www.lead-journal.org/content/17035.pdf