In June, the Supreme Court will hear a case that may significantly extend the scope of the Environmental Impact Assessment (EIA) regime to include indirect environmental effects of development. Depending on the outcome, this may mean that promoters of developments that manufacture goods whose use may create greenhouse gases (GHG) may need to include those effects in their environmental statement.
The Supreme Court will hear the appeal of the decision of the Court of Appeal in R (Finch) v Surrey County Council and will consider whether the council, in granting planning permission for the commercial extraction of crude oil, should have required the accompanying EIA to include the assessment of GHG emissions that will inevitably be generated as a result of the future use of the oil (referred to as ‘scope 3’ or ‘downstream’ emissions).
While the Court of Appeal upheld the council’s decision, it also said it was not impossible, “as a matter of law”, for those emissions to be regarded as an environmental effect requiring assessment under the EIA regime. Indeed, one of the judges did think that ought to have happened.
The Supreme Court will now need to decide for itself whether, as a matter of law, downstream GHG emissions ought to be included under EIA and whether that ought to have happened in this case. The Supreme Court’s decision, therefore, may be of real significance for the promoters of certain developments when scoping out the environmental effects of their developments.
Of further significance is that the Office for Environmental Protection (OEP) has filed an application for permission to intervene in the appeal, acknowledging the importance of the need to clarify the law around EIA to ensure proper decision-making that enhances environmental protection. This is the first time the OEP has intervened in an ongoing case, and it will be interesting to see what role it takes.
This is certainly a case worth watching. The EIA regime appears to be in the government’s sights for reform, so we will see what impact this judgment may have.
Richard Broadbent is director & Helen Mitcheson is associate in the environmental law team at law firm Freeths
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