August EWJ 24 - Flipbook - Page 17
Should a Planning Authority
Consider Indirect GHG Emissions?
by Matt Ösund-Ireland PhD BSc(Hons) CEnv MIEnvSci MIAQM
9 July 2024
day; the project falls within this category. The EIA
Directive also specifies providing ‘a description of the
likely significant effects of the project on the environment’, including ‘… the impact of the project on climate (for example
the nature and magnitude of greenhouse gas emissions) …’.
The EIA Directive further stipulates: ‘The description of
the likely significant effects on the factors specified in article
3(1) should cover the direct effects and any indirect, secondary,
cumulative, transboundary, short-term, medium-term and
long-term, permanent and temporary, positive and negative
effects of the project.’
Introduction
On 20 June 2024, a decision was held by the UK
Supreme Court that a planning authority’s decision
to grant planning permission to a developer was unlawful because the environmental impact assessment
(EIA) of the project did not include an assessment of
indirect greenhouse gas (GHG) emissions1. This has
been described as a landmark decision as it relates to
expanding oil production in the UK, and ‘has raised
major barriers to all new fossil fuel projects across the UK,
including the proposed new coal mine in Cumbria and the
Rosebank oil field in the North Sea’2. Notwithstanding the
political arguments for and against the UK producing its own fossil fuel, the judgement highlights
some key points worthy of consideration by climate
change practitioners within the planning community.
Needless to say, the full judgement deserves reading.
The main legal argument here appears to be centred
on whether climate change resulting from the GHG
emissions associated with the downstream use of the
extracted oil is causally connected to the project. This
can be broken down into two parts. Firstly, there is
agreement from all parties that GHG emissions associated with the combustion of oil will cause climate
change. Second, can we be sure the oil extracted by
the project will be combusted and hence, produce
GHG emissions? The majority of the Supreme Council agreed with the High Court judge that ‘… it is inevitable that oil produced from the site will be refined and, as
an end product, will eventually undergo combustion, and that
the combustion will produce GHG emissions.’ Despite this,
the High Court judge concluded that assessment of
the combustion emissions was, as a matter of law, incapable of falling within the scope of the EIA required
by the 2017 Regulations. Alternatively, if that was
wrong, the judge thought it impossible to say that the
planning authority’s opinion that the combustion
emissions were not indirect effects of the proposed development was irrational or otherwise unlawful. The
majority of the Court of Appeal did not agree with the
Hight Court judge’s conclusion but did accept the alternative argument and hence, the planning authority’s decision to exclude downstream GHG emissions
was upheld. The Supreme Court judgement disagreed with the planning authority’s acceptance of the
developer’s decision to include information only about
the direct effects of the project on climate and to exclude indirect effects, as this was contrary to the express requirement in relevant legislation. Moreover,
the Supreme Court argued, the indirect effect of
downstream emissions is in the control of the developer; if the oil was left in the ground there would be
no emissions.
Can an EIA be limited to including only direct GHG
emissions from the project?
This is the nub of the appeal considered by the
Supreme Court, specifically in this case whether GHG
emissions associated with the downstream use of the
oil must be included in the EIA required before development consent may be given for the extraction of
the oil. The Supreme Court judgement considers that
the answer to this question depends on whether, for
the purpose of the applicable legislation, the effect on
climate measured by the GHG emissions that will
occur upon combustion of the oil3 is an effect of the
project on the climate. The local planning authority’s
initial view was that these downstream emissions
should be included in the EIA but later limited the
EIA to include only direct GHG emissions, with two
arguments given for doing so:
1. As a matter of law, the combustion emissions could
not be regarded as environmental effects of the
project within the meaning of the legislation; and
2. Whether the combustion emissions were effects of
the project was a matter of evaluative judgment for
the planning authority. Hence their decision not to assess the combustion emissions can be challenged only
on the limited grounds on which a court can review an
exercise of discretion by a public authority.
The relevant legislation is contained in the Town and
Country Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017/571), one of a number of UK statutory instruments designed to
implement Directive 2011/92/EU (the ‘EIA Directive’),
as amended by Directive 2014/52/EU. The EIA Directive identifies the types of projects to be assessed,
including facilities producing 500 tonnes of oil per
EXPERT WITNESS JOURNAL
The Supreme Court also rejected the argument
presented by the developer (and accepted by the
planning authority) that the planning authority
should not concern itself with emissions that will occur
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AUGUST 2024
