Why the Finch legal judgment is a watershed moment for the climate – Inside track

It should be common sense that the emissions from burning fossil fuels should be factored into decisions about whether to allow new oil and gas extraction, even if the combustion takes place in a different location to extraction. Otherwise, decisions about extracting fossil fuels ignore their long term climate impacts, which is both perverse and dangerous.

But, until last week, that wasn’t how the legal framework for assessing environmental impacts was interpreted. It took the herculean effort of a tenacious group of campaigners, a team of dedicated lawyers, support from environmental NGOs and, crucially, a Supreme Court ruling to ensure that, in future, decisions to extract fossil fuels must not ignore the downstream impacts of pumping yet more greenhouse gases into our warming atmosphere.

This story, of national and international significance, was played out in the perhaps unlikely location of the Surrey Hills. It started in 2019, when local resident, Sarah Finch, challenged the decision by the local planning authority (Surrey County Council) to allow the expansion of an oil well site at Horse Hill near Horley. It would have seen oil extracted over 20 years, producing around 3.3 million tonnes. Sarah is part of the Weald Action Group, an umbrella body for local groups campaigning against oil and gas exploitation across the Weald and the Isle of Wight.

The judgment’s implications are hugeAt the crux of this case was the correct interpretation of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 and whether, when considering an application for commercial oil extraction at Horse Hill, Surrey County Council should have required the assessment of the environmental impact of the greenhouse gas emissions arising from the use of the oil products.

The case was refused permission to apply for judicial review by two High Court judges, one of whom dismissed it as unarguable. In July 2020, an Appeal Court judge granted permission to apply for judicial review in relation to two of the five grounds Sarah Finch initially put forward. The challenge finally went before the High Court in November 2020, with Friends of the Earth intervening on Sarah’s side and the developer and the secretary of state for levelling up, communities and local government the Interested Parties on Surrey County Council’s side.

In December 2020, High Court judge, the Hon Mr Justice Holgate, handed down his judgment. It held that the council had acted lawfully, rejecting the arguments made by Sarah and Friends of the Earth, and finding the council was right not to consider the end use emissions as part of the environmental impact assessment.

Sarah then sought, and was allowed, a hearing at the Court of Appeal, which took place in November 2021. When that court dismissed her appeal, albeit with a split judgment – one judge, Lord Justice Moylan, agreed with her and two (Lord Justice Lewison and Lord Justice Lindblom) did not – she appealed to the highest court in the land, the UK Supreme Court, and was granted permission.

The Supreme Court judgment was eagerly anticipated as a test of whether decisions on oil production should assess the full breadth of its climate impacts. The joy and relief of campaigners outside the court when the judgment came on 20 June 2024 says it all. This case really mattered and all eyes were on it.

The judgment stated that the reasons to exclude combustion emissions from the environmental assessment are “demonstrably flawed” and it was not “a valid ground” to argue that the oil being refined in a different location before being burned meant it did not need to be considered by the council as part of its environmental assessment.

The writing is now on the wall for all new oil and gas developments, with the new government free to adopt a more radical approach than the previous government thanks to this ruling.

While this decision doesn’t stop new oil and gas developments going ahead, it will present a much higher bar and marks a fundamental shift in the decision making landscape. As Friends of the Earth explains, the judgment “…could have enormous impacts on all new UK fossil fuel developments – including proposals for a controversial new coal mine in Cumbria”.

Other controversial developments, such as the Rosebank oil field, will also now be under the spotlight. Both the proposed new Cumbrian coal mine and the Rosebank oil field have been approved but are subject to legal challenges, including about downstream emissions.

Never doubt the commitment of citizensThe Finch case was the first foray in the courts for the new environmental oversight body the Office for Environmental Protection (OEP). While it’s hard to dissociate impact from intervention, the judges noted that they found the body’s submissions “particularly helpful”. The OEP did not take sides and instead sought legal clarity, making submissions on the interpretation of the law in this area. The OEP issued a neutral statement reporting the judgment, as a public body of this nature should, but it must be pleased that its first court intervention has helped to produce such a momentous outcome in favour of our environment.

As legislation on environmental impact assessment is the same across the EU, the Finch judgment is now also ‘persuasive authority’ before the Court of Justice of the European Union, which means it can be used by others across Europe in support of their cases. Is it too much to hope that this might be the start of an era in which the UK forges a reputation as a trailblazing jurisdiction on environmental law?

Surrey County Council will no doubt have some soul searching to do, having battled this case until the bitter end. In 2019, it declared a climate emergency and has pledged to become a carbon free council. It will need the help of diligent local campaigners, like Sarah Finch, to help make these climate aspirations a reality.

One of my favourite quotes is by the American philosopher Margaret Mead, who said that “Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has”.

Sarah Finch and her fellow campaigners are the epitome of this, having faced and overcome so many challenges along the way. We owe Sarah, her lawyers and all those who helped secure this outcome a huge debt of thanks.