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When a planning application is for a significant development, it is likely to be classified as an Environmental Impact Assessment (EIA) development. The determination of these applications requires, among other things, the submission of an Environmental Statement (ES). The ES considers the impacts of the development on the environment and is to be taken into consideration by the decision maker.
The EIA process is a statutory procedure: failing to follow that procedure when required is likely to create a sound ground for a judicial review the otherwise successful grant of a planning permission.
Having established that a development is an EIA development, the next step in the procedure is scoping the various topics to be covered in the Environmental Statement. This is called scoping. The topics cover the various likely impacts of the proposed development. Flood risk, noise impacts, the impact on nearby sites protected for reasons of heritage or habitat, and the impact on protected species of flora and fauna are all commonly covered.
The scope of the environmental statement is of interest to the many stakeholders in the planning process. Developers want to know what mitigation they require to avoid unnecessary impacts. Decision makers keenly want to know that all the significant effects of the development have been reasonably taken into account in the planning balance. The general public want to know that the local and global environmental issues they consider relevant to the planning decision have been properly investigated and understood before a decision is reached, and they can shape the environmental statement by ensuring that local issues on which they may have intimate knowledge are adequately covered.
Greenhouse gas emissions have been a feature in environmental statements for many years. A development’s directly controlled contributions to global warming, arising from sources that the development has most control over, a commonly and uncontroversially included in environmental statements. So too are a development’s indirect greenhouse gases releases arising from the consumption of electricity or gas. In both cases the steps to minimise these sources of greenhouse gas emissions are considered, mitigation is identified and proposed, and alternative scenarios considered, with the outcome trying to balance the residual global warming impacts against the benefits of the development. In the case of renewable energy schemes, the impact is the positive contribution to offsetting fossil fuels usage, which plays positively in the planning balance where negative impacts on say the visual appearance of the scheme in the landscape may otherwise lead to a conclusion that the application be refused.
But what about the proposed development’s most indirect contributions to global warming? A new shop selling goods made from plastics that have been made on the other side of the globe. A proposed new road made with tarmac and to be used by countless cars and lorries. New houses to be occupied by people who will themselves directly and indirectly consume fossil fuel. How should an environmental statement grapple with these contributions to global warming? Indeed should an environmental statement grapple with these impacts at all?
These were the questions that the Supreme Court was asked to consider in the case of Finch v Surrey County Council.
The development at the heart of the Finch decision was the extraction of oil from the Surrey Downs. The Council had initially requested the environmental statement include the greenhouse gas emissions arising from the future combustion of the extracted oil. The applicant persuaded the Council this was too indirect a source of emissions to be readily accommodated in an environmental statement, so the decision to grant planning permission for the oil extraction did not take these emissions into account.
The subsequent challenge went all the way to the UK’s highest court, and attracted submissions from a range of interested parties. The claimant’s argument was that it was unlawful of the Council to determine the application for this EIA development unless the environmental statement considered the impact of the future burning of the oil.
Certain facts regarding the ultimate fate of the ‘to-be-extracted’ oil were accepted by the parties as being uncontroversial: there was a virtual certainty, indeed an inevitability, that the extracted oil would release the greenhouse gas carbon dioxide whereas if left in the ground it would not itself contribute to global warming. Even though these greenhouse gas releases would not arise at the point of extraction which was the subject of the planning application, the Court considered that these indirect emissions were an inevitable consequence if permission for the extraction was granted, and that the environmental statement was deficient because it failed to take them into account. The Court quashed the decision to grant the planning permission.
Applications for onshore oil and gas extraction are few and far between in England and Wales. So how does the judgement in Finch play out in the wider world of development? Of course there will be some confusion, uncertainty and consternation arising from Finch, but the Court’s reasoned majority judgement set out helpful comments as to why it reached the conclusion it did, and which form guidelines for how the judgment should influence the scoping of environmental statements.
The inevitability of the extracted oil resulting in indirect greenhouse gas emissions was central to the Court’s conclusion, despite those emissions not arising directly from the development described in the application. In the absence of any indeterminacy regarding the future use of the oil its greenhouse gas potential had to be taken into account, and moreover there was a readily available protocol for calculating these emissions. Whereas had there been a series of uncertain or vague intervening stages between the oil extraction and the release of greenhouse gases then those emissions may not have had to be taken into consideration. The Court also noted that there would be no need for the environment statement to measure or assess putative environmental effects which are incapable of assessment.
Campaigners pitted against any scheme will always want the decision maker to take all the scheme’s putative environmental impacts into account, but that is not necessary for the purposes of an EIA. Rather practitioners at the coal face of scoping environmental statements can readily and reasonably justify the exclusion of indirect effects that ‘may possible’ arise from a development or where the emission’s effects have no reasonable prospect of being quantified with any certainty. A decision maker could already justify the absence of the consideration of fanciful impacts. That same decision maker can readily and reasonably justify the absence of the consideration of greenhouse gas impacts that fall into the category of ‘possibly occurring’ because that occurrence is the conclusion of a series of innumerable intervening events occurring ‘downstream’ from the project being considered and which renders the occurrence of those releases something less than inevitable. Similarly where the measurement of those impacts is just too difficult to quantify due to the uncertainty of their occurrence, they can be omitted from the environmental statement. This later exclusion is of course a moving feast, as scientific understanding and modelling capabilities improve over time.
In conclusion, the scope of environmental statements has been expanded, but not in an unbounded way. The impact of indirect effects that are inevitable and quantifiable should be included in the environmental statement, and this may alter the planning balance, but where those indirect effects are something less than inevitable or there is a settled consensus that the impacts cannot be readily quantified, then they need not be included in the environmental statement.
To discuss any of the issues raised in this article, please contact Fergus Charlton.
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