The Supreme Court’s carbon conundrum

Joking aside, a pending Supreme Court verdict will (hopefully) clarify to what extent whole-life carbon emissions need to be factored into planning decisions.

The case at hand concerns an extreme example – planning consent for the extraction of fossil fuels – but the principle at issue is far-reaching. Do the planning authorities have a legal obligation to consider the very long tail of emissions that might result whenever they issue consent?

For the bulk of developers not engaged in drilling for oil, the outcome could be surprisingly disruptive. Today we might reasonably expect planning investigations to consider the embodied carbon of a new building, the direct consequences of changing land use on the site and its surroundings, and the emissions footprint of construction. We would not expect to have to assess, and presumably justify, all the carbon that might or might not be released by building occupiers and their activities throughout the entire lifecycle of the development.

The property sector does need to move to a more holistic means of totting up its impact

This kind of exercise would not only invite extra expense, it would also bring substantial new risks and uncertainties. As the experts we’ve consulted predict, any downstream emissions assessment might equally consider the length of a piece of string.

How deep any carbon calculation should delve is probably harder to decide for a building than it is for an oil well. After all, we can measure with great clarity how much carbon might eventually be released for every barrel of oil pumped up to the surface, but we cannot say for certain who will occupy a building and, for example, what temperature they might decide is comfortable.

In other words, any long-term impact assessment would no doubt be open to legal challenge – in the absence of clear legislation specifying how calculations should or should not be performed.

As we also assess in this issue, any fresh uncertainty of this kind would play into the hands of strenuous objectors, who are already benefiting from the amplifying power of social media. As has long been clear, social media has proven a boon for those in search of echo chambers to reinforce their particular world view, whether that view concerns conspiracies about little green men or the sanctity of that little green field where locals all walk their dogs.

None of the above should be taken to mean that whole-lifecycle emissions aren’t important. They are, of course, and the property sector does absolutely need to move to a more holistic means of totting up its impact. It is also vital that owners and occupiers engage in constructive discussions about how to minimise energy consumption, if the property industry is to reach net zero at any kind of pace.

But what we need is a healthy balance of carrots and sticks, not the sudden arrival of a startled cat among the pigeons.

Whatever the Supreme Court decides, we can only hope for a measured reaction.