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‘Important’ British judgment on scope of EIAs

Lawyers at Fieldfisher have highlighted a recent decision by Britain’s Supreme Court on the scope of environmental impact assessments (EIAs) that could be used to guide decisions by Irish courts.

By a 3-2 majority, the court quashed the granting of planning permission by Surrey County Council to a developer to retain and expand an existing onshore oil-well site and to drill four new wells.

The case, R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council and others, concerned the application of 2017 regulations that implemented an EU directive on EIAs in Britain.

‘Downstream’ emissions

The court had to consider whether the local authority was required, as part of the EIA, to assess the impacts of ‘downstream’ greenhouse-gas emissions that would arise from the end use of the refined crude oil produced from the project.

Surrey County Council had not included such emissions in its EIA, and the High Court had subsequently agreed with this approach, finding that downstream emissions could not, as a matter of law, be an effect of the development for the purposes of EIA.

The Court of Appeal, however, had disagreed with the High Court, finding that it was a matter for the competent authority to judge the impact of such effects.

The Supreme Court found that the assessment of the likely significant effects of a project extended not only to the construction of the project, but also to the use and exploitation of the end product of those works. The downstream emissions of combusting oil were found to be an indirect effect of the development proposed.

‘Inevitable’ effect

“Therefore, the Supreme Court determined that the climate effects from drilling the oil wells is not only a likely possible effect, but an inevitable one,” the Fieldfisher lawyers write in a briefing.

The judges warned, however, that the scope of the EU’s EIA directive “should not be artificially expanded”, and “should not be conscripted into the general fight against climate change”.

The lawyers add that the judgment of Britain’s highest court aligns with the Irish Supreme Court’s approach in An Taisce - The National trust for Ireland v An Bord Pleanala, Kilkenny Cheese Limited and Ors.

The Irish court found that the indirect effects of a project must be effects that the project itself had on the environment.

‘Clear causal connection’

The Irish Supreme Court, however, left what Fieldfisher describes as “one caveat” for cases where the causal connection between certain off-site activities and the operation and construction of the project itself was demonstrably strong and unbreakable, such that the significant indirect environmental effects of those activities would be required to be subject to an EIA.

The Fieldfisher lawyers describe the British court’s decision as “particularly important”, as it notes the limitations of the role the EIA directive plays in relation to combating climate change.

“Whilst climate impacts are a factor to consider in assessing any given project, downstream greenhouse-gas emissions should only be assessed where there is a clear causal connection with the project,” they conclude.