Judge confirms limit of developers' emissions assessments

Out-Law News | 08 Jan 2021 | 9:52 am | 2 min. read

Greenhouse gas (GHG) emissions that would stem from the use of products by consumers and businesses do not need to be reflected in the environmental statements developers are required to prepare in England, the High Court in London has confirmed.

The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 require developers to produce an environmental statement alongside their application for planning permission for those schemes which meet the thresholds set out in the Regulations. The statement must describe the likely significant effects of a development, both direct and indirect, on the environment.

Campaigner Sarah Finch argued that those provisions required the company behind an oil drilling development in Surrey to assess the GHG emissions resulting from the use of an end product originating from their development. She, representing the Weald Action Group and supported by environmental campaign group Friends of the Earth, claimed Surrey County Council had unlawfully granted planning permission to the developer given the company had not included that assessment in their environmental statement. However, her arguments were rejected by the court, which confirmed that the law only obliges developers to assess the effects which the development itself has on the environment.

McDonald Nick

Nick McDonald

Partner

Claimants are looking to use the full range of legal areas to shine a light on companies and projects, and to try to stop fossil fuel-based schemes moving ahead

In his ruling, Mr Justice Holgate highlighted the "ramifications" had he upheld Finch's claims.

In the context of development drilling, it would have meant developers in England having to account for GHG emissions that could arise from the refining and end use of that oil, which the judge acknowledged could happen anywhere in the world. Similar extensive assessments would also arise in relation to developments where the extraction of minerals or production of other raw materials was envisaged, or in other sectors such as waste, where he identified that "the handling of waste, recycling, recovery and disposal to landfill can generate GHG".

In one other specific example, he explained how requiring assessment to be made of the GHG emissions stemming from the end use of metals produced at a development could entail an assessment of GHG emissions arising from the manufacture of vehicle parts, the assembly of those parts, the distribution and sale of those vehicles and their use by drivers.

Planning law expert Nick McDonald of Pinsent Masons, the law firm behind Out-Law, said: "The range of climate litigation internationally and domestically in the UK is growing significantly, with claimants looking to use the full range of legal areas to shine a light on companies and projects, and to try to stop fossil fuel-based schemes moving ahead. The challenge here focused on the promoter’s approach to greenhouse gases within its environmental impact assessment (EIA) – the latter has long been a target for legal challenges to infrastructure consents, and a robust approach to screening, scoping and assessment of projects has never been more important."

"Whilst the UK government's planning white paper, published last year, promised a 'quicker, simpler framework for assessing environmental impacts', it is very difficult to see that the government will be able to significantly row back on aspects relating to climate change given the net zero legal target, interim carbon budgets which are getting more stretching, and the wider political position," he said.

"The court’s judgment will be welcomed by project promoters as it recognises the issues with having to measure and assess the carbon emissions relating to the use of products arising from a development, and confirms that only 'scope 1' emissions need to be considered in the environmental statement. Here that meant that the emissions from constructing and operating the onshore oil drilling site had to be assessed, but not the ultimate refining or combustion of the fuels, something that could have happened in many different ways anywhere in the world, given the international market in fossil fuels," McDonald said.