Court approves Surrey oil development, but campaigners hail ‘significant legal victory’

Image credit: Sarah Finch

Court of Appeal judges ruled that Surrey County Council acted lawfully in its approval of an onshore oil development, despite ignoring the emissions produced when the fuel is ultimately used.

Activists, however, on Thursday welcomed the decision of one of the three judges, who said the council had not considered all of the project’s impacts in its environmental assessment.

The decision follows a more than two-year legal battle led by activist Sarah Finch to challenge the decision to greenlight an onshore drilling plan, which could see three million tons of oil extracted during its 20 years of operation.

The board allowed approval for the development of Horse Hill in 2019, only a few months after to announce a climate emergency. Four additional wells are to be added to an existing short-term site known as “Gatwick Spring», as well as a reinjection well for the water produced during operation and other associated facilities.

Finch said she was “appalled” by the decision but “reassured that it was not unanimous”. Katie de Kauwe, a lawyer for the environmental group Friends of the Earth (FoE), which supported Finch in the case, said in a statement that the split judgment “underscores that there is no agreement, even among senior magistrates, on questions of law relating to climate change”.

Rowan Smith, a solicitor at Leigh Day who represented Finch, called it a “hugely significant legal victory in the context of wider climate change litigation in the UK”.

“Irrational” to ignore indirect emissions

the audience before the Court of Appeal came at a delicate time, just days after the UN COP26 climate summit in Glasgow in November, with Finch backed by campaign groups on the one hand and the council , the British government and the oil company on the other.

As Pierce or drop reported, Finch’s legal team argued that the council should have considered emissions from the combustion of extracted oil – known as scope 3 emissions – in its planning permission. These emissions are an “indirect effect” of the project and environmental impact assessments (EIAs) for such planning applications require careful consideration of direct and indirect impacts, they said.

Marc Willers QC, acting for Finch, argued that it would be “irrational” not to consider downstream emissions for this type of development.

Council solicitor Harriet Townsend, however, said the burning was not part of the development at Horse Hill, and therefore did not need to be considered in the EIA, arguing that the project would be terminated” even if this raw [oil] is bought by a philanthropist and buried in the ground”.

Representing Horse Hill Developments Ltd, a subsidiary of UK Oil & Gas, David Elvin QC argued that indirect emissions could be assessed further downstream at refineries.

But lawyer Estelle Dehon, also representing Finch, argued that the extraction process was the only point at which all of the project’s oil would be assessed, as not everything would be subject to an EIA at a refinery.

Finch, on behalf of Weald Action Groupan umbrella group for communities opposed to oil and gas extraction in the south of England, took legal action against the development shortly after it was approved in 2019. Judge Holgate heard his case for a judicial review of the project’s approval by the High Court in November 2020.

The Department of Planning, Housing and Communities (DLUHC) joined as an “interested party” prior to the judicial review hearing and acted as a defendant in the Court of Appeal case. As the Times reportedthe decision to do so was apparently motivated by the fact that the case concerned land-use planning policy.

Government insists it is not taking sides on the project, with DLUHC spokesperson story the Independentt in November: “The department’s role in this appeal is in no way an expression of a view on the merits of the development of Horse Hill and relates only to the interpretation of the regulations.

DLUHC did not respond when asked what other cases he had joined on these grounds.

Divided judgment

The judges of the Court of Appeal were charge to reconsider the High Court’s decision to to reject Finch and whether Judge Holgate erroneously concluded that the board did not need to consider Scope 3 emissions.

Court of Appeal judge Sir Keith Lindblom, senior presiding judge, ruled that Judge Holgate was right to dismiss the case. Lord Justice Lewison agreed with Lindblom, although “not without hesitation”.

But Lord Justice Moylan said the EIA’s failure to ‘identify, describe and assess’ the Scope 3 emissions that ‘will be produced by the commercial use of oil extracted from the wellsite’ means it does not ultimately failed to “assess the relevant emissions and expected effects of the proposed development”.

Referring to Moylan’s decision, Sarah Finch’s solicitor, Rowan Smith, said in a statement that “there is now Court of Appeal authority that when decision makers consider whether to grant a license to build for fossil fuel projects, they may be required by law to assess the greenhouse gas emissions resulting from the use of extracted oil, coal or gas.

The lawyer, however, called the overall judgment “flawed” and advises Finch on a possible appeal to the Supreme Court.

FoE’s lawyer, from Kauwe, said the organization also agreed with Moylan that the council “could and should have taken into account the inevitable end-use emissions resulting from this fossil fuel development. “.

Surrey County Council welcomed the decision, with a spokesperson story the BBC“We note the judgment that our planning decision was legal. We will review and review the full findings of the judgment in due course. »

In a statement, Finch said, “The fact that even the most experienced judges can’t agree on whether these ‘downstream’ shows should be evaluated in the planning process shows that we need legal certainty on the issue. How can planning authorities be expected to know what to do when even judges disagree? »

“Every tonne of carbon dioxide emitted will make the situation worse in the future – and more than 10 million tonnes could be produced as a result of this development,” she added.


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Sara H. Byrd