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Climate change litigation: Courts decide the law, not political policies

News / / London

R (Finch) v Surrey County Council CA (Civ Div) [2022] EWCA Civ 187
The task of the court in a claim such as this is only to decide the issues of law. Those issues cannot extend into the realm of political judgment – which is the responsibility of the executive, not the courts …

Consistent with a string of recent cases, the English Court of Appeal has once again reiterated that the role of the UK Courts is to resolve legal issues, not issues of political policy even where the subject matter is climate change.

Background

Exploratory drilling at Horse Hill had been granted permission in 2012.

New permission to drill production wells was sought in 2018.

Nearby residents and environmental activists objected.

Under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017 No. 571) (“Regulations”) the driller was required to submit an environmental statement (“ES”) describing the likely significant effects of the project on the climate.

In this instance, the ES assessed that greenhouse gas emissions would be produced by the operation of the project but it did not assess the effects of emissions from the end use of the produced oil, for example by consumers using petroleum products in motor vehicles (“Scope 3 Emissions”).

The Regulations also required the local regulatory authority, Surrey County Council (“SCC”), to carry out an Environmental Impact Assessment (“EIA”). As part of the EIA process, SCC’s delegated officer concluded that the ES complied with Regulations. Planning permission was then granted in 2019.

The High Court Challenge

Finch, who lived close to the site, sought judicial review of SCC’s decision to grant permission principally on the basis that the ES excluded the effects of the combustion of produced oil and on the basis that SCC had erred in law by permitting the omission of the assessment of Scope 3 Emissions.

Holgate J. rejected Finch’s challenge, the salient points being:

  • The inevitability of combustion of produced oil was not a legal test for whether Scope 3 Emissions were an effect of the project.
  • The legal test was whether the effect on the environment was an effect of the project (“Holgate’s Legal Test”).
  • There is no requirement to assess effects which go beyond the effects of the project.
  • The Regulations were concerned with use of land, and the effects of that use; they were not directed at the effects of consumption from an end product.
  • There was no obligation for the EIA to assess Scope 3 Emissions resulting from an end product (i.e. refined oil) that was not made at the project; as a matter of law, that assessment was incapable of falling within the scope of the EIA required by the Regulations for this project.
  • The decision as to whether Scope 3 Emissions should be assessed was a matter of judgment for SCC.
  • The essential character of the project was the extraction of oil, not the processing, nor the combustion, of the produced oil. SCC’s judgment, that Scope 3 Emissions from the combusted refined fuel were not an environmental effect of the project, was not irrational.

Finch appealed.

The Court of Appeal

The Court of Appeal decision was not unanimous.  The majority rejected Finch’s appeal, deciding that:

  • Holgate J. had not misinterpreted the scope of the project, which was to be considered in a broad purposive way.
  • The essential character of the project was the extraction of crude oil for commercial purposes; the ultimate use of the products generated by refinement was not part of the project.
  • Holgate J. was incorrect in saying that, as a matter of law, the assessment Scope 3 Emissions resulting from an end product not made at the project was incapable of falling within the scope of the EIA required by the Regulations for this project.
  • Holgate’s Legal Test was also incorrect; what needed to be considered was the degree of connection between the project and the effect.
  • Whether Scope 3 Emissions were, or were not, an effect of the project was not a matter of law but one of fact and an evaluative judgement for SCC, which could only be challenged on public law grounds such as irrationality.
  • SCC’s reasons and judgment were, just about, sufficient to avoid being irrational.

The Senior President also observed that Holgate J.’s decision was approved by the Scottish Inner House of the Court of Session insofar as that Court concluded that the effect of the ultimate consumption of refined oil was not a direct or indirect effect of the project that produced the crude oil.

Dissenting, Moylan L.J. held that the essential character of the project was the extraction of oil for commercial purposes and thus the relevant consideration was the impact of the extraction of oil for commercial purposes. Moylan L.J. considered that Scope 3 Emissions resulting from the inevitable commercial use of oil produced solely for combustion was an effect of the project.

Moylan L.J. agreed with that assessment of such Scope 3 Emissions was not required as a matter of law but was instead a matter of judgment for SCC but instead, on the facts, concluded that SCC’s reasoning was legally flawed.

Comment: Legal issues not political issues

Judicial review challenges that turn on the exercise of judgment inevitably will be fact-specific. Consistent, though, is the Court’s persistence in delineating its role in such proceedings. This was a prominent feature in the judgments of both the High Court and the Court of Appeal. 

Holgate J. specifically referenced R (Rights: Community: Action) v Secretary of State for Housing, Communities and Local Government [2020] EWHC 3073 (Admin), noting 

The court is not responsible for making political, social, or economic choices. Those decisions, and those choices, are ones that Parliament has entrusted to ministers and other public bodies. The choices may be matters of legitimate public debate, but they are not matters for the court to determine.

Holgate J. also remarked that “It is not the Court’s role to deal with the merits of these policies or their application”.

The Court of Appeal also reiterated that the Court’s role is to decide issues of law only, not issues of political judgment or policy making, observing that:

“As this court has made clear several times, it applies no less to cases whose subject matter concerns greenhouse gas emissions and climate change than it does to all others”.

It seems that whilst the UK Courts will interpret current law involving climate change issues, the Courts are keen to avoid being drawn into debate about the policies that generate such law.

A warning to Court users

The Finch cases also serve as a warning that the rules of Court remain the same whether hearings are conducted in person or in the virtual world. Despite the era of virtual hearings, the making and publication of an unauthorised recordings of legal proceedings remain criminal offences. Having broadcast a clip from the virtual hearing before Holgate J., the BBC was held in contempt of court and was fined £28,000.

Ben Moon

Ben Moon Legal Director

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