In a majority judgment by Lord Leggatt (with whom Lord Kitchen and Lady Rose agree), the Court held that that ‘downstream’ greenhouse gas (GHG) emissions from the use of oil were indirect effects of a project for the extraction of oil, even though they were not part of that project, it was not clear where those GHG emissions would arise and they would go through a separate process of refinement along the way [102] – [110]. In reaching this conclusion, Lord Leggatt emphasised that climate change was a global problem and there was no correlation between where GHGs are released and any harmful effects [97], therefore it was not necessary to know where any release would occur to assess their impact [114]. 

The dissenting judgment from Lord Sales (with whom Lord Richards agrees) considered the evolution and purpose of the EIA legislative regime, which is focused on the environmental effects of projects, to inform decisions that are often taken by local and regional authorities. Lord Sales contrasted the position with the legislative framework and decisions regarding scope 3 downstream GHG emissions, which are addressed by central government at a national level [253] – [254]. In doing so, he considered that a local planning authority was simply not in a position to address these “big picture” issues in any sensible way [255], and it would be “constitutionally inappropriate” for a local planning authority to assume practical decision-making authority based on its own views as to how these emissions should be addressed, which may be in conflict with central Government decision-making [256]. Lord Sales considered the text of the EIA Directive against this background and the purpose and scheme of the EIA Directive at [273] – [295]. Lord Sales therefore agreed with the first instance Judgment of Holgate J. in the High Court and the Supreme Court of Ireland in An Taisce v An Bord Pleanala (Kilkenny Cheese Ltd) [2022] IESC 8 [331].  

This judgment of the Supreme Court is likely to have significant implications for the EIA process and many developments which are currently pending determination. However, Lord Leggatt explained why he did not consider that it would open the floodgates to the assessment of downstream emissions [120]. He distinguished other manufacturing processes from the extraction of fossil fuels on the basis that it was agreed that the oil would inevitably be burnt and a reasonable estimate can readily be made of the quantity of GHG emissions that will be released when that happens. In contrast, it was not a requirement of the EIA process to measure or assess putative effects which are incapable of assessment, such as where effects will depend on innumerable decisions made ‘downstream’ [119] – [123].

Gregory Jones KC and Alexander Greaves provided written submissions on behalf of West Cumbria Mining Ltd, who intervened in the case. They were instructed by Ward Hadaway.

Chambers will be hosting a Breakfast Briefing on 25 June at which members of chambers will provide an analysis and discuss the implications of the judgment.  More details can be found here.