SUPREME COURT HEARING COULD END ALL NEW FOSSIL FUEL PROJECTS

Extinction Rebellion activists will be gathering in silent vigil outside the Supreme Court this week in support of campaigner Sarah Finch whose legal challenge could have major repercussions for all new fossil fuel projects [1], including the proposed new coal mine in Cumbria [2] and development of the Rosebank oil field in the North Sea [3].

Sarah Finch is challenging Surrey County Council’s 2019 decision [4] to grant UK Oil and Gas (UKOG) planning permission for drilling at its Horse Hill site, near Gatwick Airport – on the grounds that environmental impact assessments must take into account downstream emissions caused by burning extracted oil.

Her fight has now reached the UK’s highest court after three appeal court judges were split over the lawfulness of the county council’s decision to grant permission for 2o years of oil drilling and production [5].

Extinction Rebelion co-founder Gail Bradbrook said: “The government has been trying to fool people that licensing new oil, gas and coal projects is compatible with keeping below 1.5C of global warming against the advice of all the experts including their own Committee on Climate Change. The trick they are trying to pull is telling us that the emissions from burning the fuels don’t count! If the Supreme Court is to have any credibility it needs to reject this argument out of hand.”

There is a large consensus that developing new fossil fuels is incompatible with staying below 1.5C of global warming [6]. This view is endorsed by the UK’s Committee on Climate Change [7], UN General Secretary António Guterres [8]and even the International Energy Authority [9].

Extinction Rebellion activists have long campaigned against the Horse Hill development, staging numerous protests at the site, including occupying a drilling rig, staging lock-ons, and slow walking oil tankers approaching the site [10].

The legal case, which will be heard in the Supreme Court on 21 and 22 June, is of major importance to future decisions by planning authorities about applications to extract fossil fuels across the UK and centres on the correct interpretation of the Environmental Impact Assessment (EIA) Regulations 2017.

The claim is supported by Friends of the Earth and Greenpeace UK, both intervenors in the case. The Office of Environmental Protection and West Cumbria Mining Ltd have also intervened. [11]

The proposed expansion of the Horse Hill Developments Ltd site, with five drilling cellars, four hydrocarbon production wells, four gas-to-power generators, a process, storage and tanker loading area, seven 1,300-barrel oil tanks, and a 37-metre drill rig would allow large-scale production of up to 3.3 million tonnes of crude oil for sale and use as transport fuel for 20 years.

Sarah Finch, on behalf of the Weald Action Group, says Surrey County Council should have taken into consideration the “Scope 3” downstream greenhouse gas (GHG) emissions of the crude oil to be extracted in its environmental impact assessment of the site for planning permission.

When Finch took her case to the Court of Appeal judges were divided [5], but Sarah Finch says their majority interpretation of the EIA regulations means that decision-makers may grant permission for commercial fossil fuel production without the climate impact of such development ever being subject to full environmental impact assessment.

She says a plain language interpretation of the EIA Regulations means it is unlawful for a planning authority to grant planning permission without the benefit of an assessment of the nature and magnitude of the GHG emissions which would be caused by the oil’s combustion.

She argues that for Surrey County Council to grant planning permission based on a complete absence of any assessment of the unavoidable indirect effects on climate of the inevitable burning of the extracted petroleum was unlawful.

Her grounds are that the Court of Appeal was wrong to:

Hold that downstream GHG emissions were not indirect effects of the development
Hold that EIA is “project-centric” and exclude downstream GHG emissions from being indirect effects because the use of products generated by refinement of oil “was not part of the project”
Find compliance with the EIA Regulations entirely a matter of “planning judgement” even if assessment of an indirect effect is wholly absent.
Accept that downstream GHG emissions were a material consideration for the planning decision but were not indirect environmental effects.
Sarah Finch, Extinction Rebellion and Weald Action Group campaigner, said: “The biggest climate impact from this project will occur when the oil is eventually burned. If councils can ignore these ‘downstream’ impacts when making planning decisions, then we have no hope of staying within safe climate limits. The present lack of clarity over Environmental Impact Assessment is dangerous. I hope that the Supreme Court will confirm that no fossil fuel development – coal, oil or gas – should be allowed without consideration of its full climate impact.”

James Knapp, Extinction Rebellion South East and Weald Action Group activist, James Knapp, said: “In a world on the brink of catastrophic instability caused by unabated fossil fuel use, it’s absolute nonsense that planners must give great weight to the ‘need’ for fossil fuel extraction but none at all to the climate crisis.”

Friends of the Earth lawyer, Katie de Kauwe, said: “Sarah Finch’s legal challenge could ensure that the full climate impacts of new fossil fuel developments have to be taken into account in the environmental impact assessment when planning applications are considered. We’re in a climate crisis and it’s absurd that this is not happening already.”

Rowan Smith at Leigh Day who is representing Sarah Finch said: “It’s difficult to overstate the importance of this case. The Supreme Court will rule conclusively on whether or not the climate change impact of fossil fuel development in the UK must be taken into account before planning permissions are granted. There is a huge amount at stake for the future of the planet and the UK’s ability to meet its carbon reduction targets.”

Deborah Elliott, local resident and Extinction Rebellion activist said: “The method of extraction at Horse Hill terrifies me, there is the potential for ground water contamination as the water table locally is high. And, now, they have permission to flare all the gas that is produced in the process, a further impact on our environment. Surrey County Council gave permission for 20 years of oil production, even though they declared a climate emergency themselves, utter madness!”

Rowan Smith has instructed Marc Willers KC of Garden Court Chambers and Estelle Dehon KC and Ruchi Parekh, both of Cornerstone Chambers.