Yesterday, the Supreme Court handed down their judgment in a case which has rumbled on since 2019, when Surrey County Council granted planning permission for Horse Hill Developments Ltd to open up four oil wells in the countryside near Gatwick airport and extract oil from the Horse Hill site for up to 20 years.
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Having just announced a climate emergency, the council initially recommended that any environmental assessment should take account of ‘indirect emissions’ – ie the climate impact of burning the extracted fuel, but then the officer responsible changed the report, and the planning committee were not asked to consider greenhouse gas emissions nor consider any implications in the context of the government’s legal commitment to net zero by 2050.
Local environment campaigner Sarah Finch began a five year battle and found herself the following year in a judicial review of the council’s decision at the High Court, where she faced UK Oil & Gas plc, the Secretary of State for Housing, Communities and Local Government and Surrey County Council. The defence argument centred around whether the developers had any control or precise information of whether the product would be burned in the UK or exported abroad, and whether any emissions might be offset. Mr Justice Holgate adjourned the case to wait for a Supreme Court decision on Heathrow expansion, describing the issues as having “tremendous implications” that “may need to be considered by parliament and not judges”. In December 2020, in a decision that campaigners called illogical and inconsistent, the High Court ruling stated that Surrey Council had acted lawfully and that there was “no requirement to assess matters which are not environmental effects of the development or project” and that the scope of the council’s obligation doesn’t stretch to the “effects of consumers using (in locations which are unknown and unrelated to the development site) an end product.”
With the continued help of Friends Of The Earth and the Weald Action Group, Finch appealed the ruling and the following November, three judges heard her claim that over the next two decades an estimated 3.3 million tonnes of carbon would inevitably be emitted due to the oil production at Horse Hill. Her barristers, Marc Willers KC and Estelle Dehon KC argued that it would make no difference whether the oil produced was burned in Chelsea or China, but that the oil combustion will emit greenhouse gases into the atmosphere where it will contribute to the climate emergency. They also pointed to other Environmental Impact Assessments (EIAs) which regularly consider “indirect impacts” such as increased jobs up or down the supply chain, and effects on other businesses or threats to wildlife.
The barrister for Surrey tried to confine the issue to oil production at the site, and that any future use was beyond the scope of the EIA, and although the burning of the oil would be likely, it was not inevitable – the drilling project was self-contained and would be complete even if the “oil was bought by a philanthropist and buried in the ground”.
Barristers for the site operator and for the government’s Department of Levelling Up said that usable oil wasn’t the end product of the site, and it was refineries which produced the oil that may be burned.
Ms Finch’s team argued that the EIA was the only point at which an actual assessment of the climate impact could be made.
The following February, the appeal court judges gave a split verdict, with Lord Justice Moylan allowing the appeal, while Lord Lewison and Sir Keith Lindblom dismissed the case.
Although maintaining the decision made no sense in the context of net-zero commitments and a climate emergency, Sarah Finch took reassurance from the split decision, and decided to proceed to the Supreme Court, with the help of continued crowdfunding as well as auctions and sponsored walks and cycle rides.
So in June last year, campaigners rallied outside the Supreme Court, while inside Sarah Finch (on behalf of the Weald Action Group) once again faced Secretary of State, UKOG and Surrey Council. Friends Of The Earth and Greenpeace supported her in court while the government’s own watchdog the Office for Environmental Protection attended, as well as West Cumbria Mining Ltd (whose controversial coal mining plans could be affected despite government go-ahead). Real Media filmed and reported outside the court.
Once again, Sarah’s team challenged the High Court appeal decision on several grounds, saying they were wrong in their view that:
- Downstream emissions were NOT indirect effects of the development.
- Assessment could be project-centric, and that refined products or their end use were not part of the project itself
- Permission could comply with assessment regulations even without any consideration of indirect effects and this was a matter of “planning judgment”
- The High Court accepted downstream emissions WERE a material consideration in planning, but were NOT actual indirect environmental effects.
It took a whole year for the five Supreme Court judges to give their decision, and once again campaigners rallied outside with baited breath, trying to hear the livestreamed judgment on their phones and make sense of the legalese. After a few minutes, some were giving little whoops as it seemed things were going their way. The whoops turned into massive cheers and some tears of joy with the news of a 3-2 majority verdict and a massive win.
Inside the court, another judgment was being read out, and campaigners had to stifle their joy for a few minutes before they could leave. Soon, Sarah Finch and her comrades from Weald Action Group emerged into the bright sunlight in front of the court brandishing a bottle of champagne to a tumultuous reception, and barristers and campaigners gave short statements and speeches.
Among the speakers was Katie De Kauwe, lawyer for Friends Of The Earth, who pointed out that as a female in a sector dominated by white middle-class men, she was delighted to be involved in a case brought by a female activist on behalf of a group largely led by women as well, and it was a shining example of how women are leading the fight for climate justice.
So now, the planning permission at Horse Hill is quashed because Surrey Council acted unlawfully in approving a long-term onshore oil extraction project without assessing downstream emissions.
The full judgment comprises 100 pages, but the main takeaway is Lord Legatt’s statement that “The emissions that will occur on combustion of the oil produced are ‘effects of the project’ because it is known with certainty that, if the project goes ahead, all the oil extracted from the ground will inevitably be burnt thereby releasing greenhouse gases into the earth’s atmosphere in a quantity which can readily be estimated.”
This is what Sarah Finch thought was obvious all along, and thanks to her perseverance, it is now a legal precedent, which may seriously strengthen legal challenges against up-coming fossil fuel projects such as the Cumbrian Whitehaven coal mine, an on-shore oil development at Biscathorpe in Lincolnshire, and even the highly controversial Equinor Rosebank oil field and Shell’s Jackdaw project in the North Sea.
