CSDLP Climate Litigation Review Series – R (Finch) v Surrey County Council and Others – Part 2 of 3

Continuing from: R (Finch) v Surrey County Council and Others – Part 1 of 3

Transboundary Effects

The Court held that climate change effects are peculiar in that there is no correlation between where GHGs are released and where climate change is felt. Therefore, the relevance of GHG emissions caused by a project is not dependent on where combustion takes place, and the impact of any emissions cannot be said to be confined to the locations where combustion occurs.

On this basis, the argument by the Developers that including the GHG emissions in the EIA, including the impact of combustion in other countries (“transboundary effects”) would be impractical and burdensome was rejected by the Court. The Court instead upheld the Appellant’s argument that the EIA Directive should be interpreted broadly, noting that the relevance of the GHG emissions to the EIA process does not depend on where the combustion occurs, as climate change is a global issue.

The majority judgement also addressed an argument made before the lower Courts concerning the impacts of this analysis on other raw materials, for example steel, which may be transformed into other products, if all ‘downstream’ emissions were considered ‘effects of a project’. Holgate J had been concerned that this would render the ES process unworkably difficult because a developer would be required to calculate emissions resulting from all possible end uses. However, the majority considered oil to be a very different type of commodity, which did not fundamentally change in the process of refinement, and which would always be used for the same end purpose (combustion). It was significant that the parties had effectively agreed that all oil produced would result in combustion (and not be put to other uses).^[1]

Faulting the decision of the Court of Appeal that the assessment of the effects of the project depended on the matter of degree which in the Council’s evaluation, resulted in a sufficient  causal link between the project and the effects, the Majority held that the notion of sufficient causal link based on the Council’s evaluation was “intrinsically vague” as there is no precise criteria established or agreed for such determination so that this uncertainty could lead to a trend of inconsistent decisions made by different Planning Authorities on similar projects and result in arbitrary administration.

 Dissenting Judgement

The dissenting Judges agreed with the original reasoning of Holgate J. The dissenting opinion of Lord Sales (with which Lord Richards agreed) noted that the granting of planning permission for the projects is taken at a local or regional level, whereas the issues surrounding downstream greenhouse gas emissions are taken at a national level. Therefore, Lord Sales argued that it would be constitutionally inappropriate for local authorities to make decisions based on their own views on downstream emissions.[2]

Comparison with Similar Cases

Greenpeace vs Advocate General[3]

In relation to this case analysis, it should be noted that a similar fundamental issue arose before the Scottish Court of Session. In Greenpeace vs Advocate General, the Scottish Court was asked to decide whether the environmental impact of consumption of the extracted and refined oil and gas, rather than the exploitation process, was a relevant consideration in granting approval to British Exploration Operating Company Ltd (BP) and Ithaca Energy (UK) Ltd to exploit the Vorlich oil field in the North Sea.

In delivering judgement, Lord Carloway noted that the relevant considerations that BP needed to consider in preparing the ES were set out in Regulation 3A of the Offshore Petroleum Production and Pipelines (Assessment of Environmental Effects) Regulations 1999. BP was required, to assess the direct and indirect significant effects of the project on, amongst other elements, the climate, and the operational effects of the relevant project. According to the Court, these effects did not include the consumption of the oil and gas by the end user. Lord Carloway explained that, however broad and purposive an interpretation of the 1999 Regulations or the Directive might be attempted, the clearly expressed wording of the legislation could not be disregarded. It was, the effect of the project and its operation that had to be considered and not that of the consumption of any retailed product ultimately emerging as a result of a refinement of raw material.[4] He also agreed with the Secretary of State’s argument that it would not be practicable, in an assessment of the environmental effects of a project for the extraction of fossil fuels, for the decision maker to conduct a wide-ranging examination into the effects, local or global, of the use of that fuel by the final consumer.[5]

With the decision of the UKSC in Finch it has now been clarified that end user effects of combustion must be regarded as indirect effects of a project that are within the contemplation of the EIA legislation and further clarifying that it is inevitable that the extracted oil would be refined with combustion resulting in GHG emissions. The peculiarity of climate change as a global phenomenon which cannot be limited or minimised to a single location or region, is a fundamental consideration in deciding that transboundary effects must be assessed. Therefore, courts in the UK can no longer adopt the position that the effects of oil consumption are not a relevant consideration.

Consolidated Petitions of Greenpeace vs Shell P560/22 (in the Greenpeace Jackdaw Petition), Greenpeace vs Equinor UK P967/23 (Greenpeace Rosebank Petition) & Uplift vs Equinor UK P1158/23 (Uplift Rosebank Petition)[6]

Greenpeace UK launched a legal challenge against the Jackdaw and Rosebank projects, collaborating with Uplift on the Rosebank Petition, on the grounds that regulators approved the projects without considering the emissions arising from burning the fossil fuels, and as a result they are not compatible with the UK’s legally binding climate commitments. [7]

The petitioners challenged the decisions of the Secretary of State and the Oil and Gas Authority (OGA) in granting consent for the development and production of these oil fields, on the basis that they are unlawful as they did not take account downstream emissions as required by R (Finch) v Surrey County Council (“the Finch ground”).[8]

Applying the ratio of Finch, the Court held that both the Secretary of State's agreement to the OGA’s grant of consent, and the grant of the consent by the OGA, were unlawful because the environmental assessments for each project failed to assess the effect on climate of the combustion of the oil or gas to be produced.

The Court was not convinced by the argument of the project developers (Shell, Equinor and Ithaca) emphasising that their private interest should be considered and that the projects have progressed significantly. The Court instead held that members of the public have a private interest in the mitigation of climate change and public authorities should act lawfully in the interest of the public and these outweighs the interest of the developers.[9] 

This judgement by the Scottish Court of Session is pivotal and a significant departure from the previous decisions of the Scottish Court of Session, as highlighted in the case of Greenpeace vs Advocate General (decided prior to the Finch case). It departs from the previous position of considering only immediate impacts of the project on the climate, but instead, highlights the importance for assessing the impact of end user combustion on the climate.

The decision by the Scottish Court of Session aligns with the Finch case to the extent that downstream emissions ought to be considered. The decisions confirm a new trend and shape the evolving jurisprudence in this crucial area of the judicial response of climate change, within the UK and potentially beyond. This is another step that clarifies how authorities must account for the effects of large infrastructure projects for EIA purposes.

Cumbria County Council’s case [2020] Env. L.R.3

In R. (on the application of Preston) v Cumbria County Council, one of the main decisions before the high Court was whether the proposed works met the required thresholds as to require an EIA to be conducted.

The case centered around the decision by Cumbria County Council ("Cumbria County") to grant planning permission to United Utilities Water Limited ("UUWL") for the continued use of a temporary outfall from a wastewater treatment plant into the River Kent in Cumbria. The claimant, Christopher Preston, challenged the lawfulness of Cumbria County’s decision on a few grounds, including that the County failed to conduct a "screening opinion" under the EIA Regulations to determine if an EIA was needed.

Cumbria County sought to rely on the environmental permit granted by the Environment Agency to eliminate the need for a screening opinion. UUWL, an interested party, further argued that the development was outside the scope of the EIA Regulations, so no screening opinion was required. 

The Court held that the development fell under "Schedule 2 development" under the EIA Regulations, given its potential significant adverse environmental effects, and therefore required a screening opinion by Cumbria County. The Court rejected the argument that the EIA Regulations should only consider the physical construction of a structure (such as the outfall pipe) without considering its operational impacts, such as discharges into the river. It clarified that the EIA process must consider both the construction and operational effects, including potential impacts on biodiversity, water quality, and other environmental factors.

The judgement mirrors the thinking in Finch’s case, as it refers to “adverse environmental effects” as a determining factor in considering whether a development falls under the EIA Regulations to warrant an EIA. The judgement also clearly highlights the need to consider operational impacts of a development/project in the EIA process. 

R (on the application of Squire) v Shropshire Council [2019] EWCA

 In this case, an appeal was filed against a high Court judgement upholding the decision of Shropshire Council to grant planning permission for an intensive poultry-rearing facility at Footbridge Farm. The basis of the appeal was that the EIA conducted for the development was not adequate as it failed to assess the indirect environmental impacts of the proposed development, particularly the effects of odour and dust from the off-site storage and spreading of manure on third-party land. It was the appellant’s argument that the EIA focused on emissions from the poultry buildings but did not adequately address the significant environmental effects of manure disposal.

The respondents, who were successful at the lower Court, argued that the EIA was sufficient, as it considered the environmental impacts associated with the operation of the poultry facility itself. They sought to rely on the environmental permit obtained from the Environment Agency to cover any potential environmental impacts, including off-site manure management.

In reaching a decision to allow the appeal, the Court analysed the EIA and noted that it failed to assess the environmental impacts of odour and dust arising from the storage and spreading of manure on land outside the application site, including third-party land. The Court also rejected the respondents’ argument that the off-site impacts of the developments would be managed under the environmental permit, noting that the permit did not extend to controlling manure management on land outside the facility's site boundaries.

The decision in this case highlighted the need for the EIA to not only cover operational impacts within an operating site but also other environmental factors outside the site, so long as such factors can be linked to the site activities. As with the decision of the UKSC in the Finch case, it is established that indirect effects are expected to be included in an EIA assessment to ensure comprehensive and conclusive evaluations. It also establishes the notion that indirect assessments are important because it is unlikely that climate impacts be confined to a locality. However, unlike the Finch case, this case assesses environmental impact and does not consider the broader climate change impacts.

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[1] ibid

[2] Ibid.

[3] 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

[4] ibid

[5] ibid

[6] 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>

[7] Ibid

[8] Ibid, pg 3, para 4

[9] Ibid, pg 51, para 151

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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