The BBC headline sums it up: “Key oil project must count full climate impact – court”. The article commences dramatically:
The Supreme Court has ruled a local council should have considered the full climate impact of burning oil from new wells – a landmark decision which could put future UK oil and gas projects in question.
Under planning law the assumption has always been that only the impacts from constructing the wells and not the use of the final oil products should be considered.
The case brought against Surrey County Council by Sarah Finch, on behalf of campaigners could threaten new UK fossil fuels projects.
Is the hype justified? For those who would like to see the detailed reasoning, with a view to contemplating the implications for themselves, the Supreme Court decision can be found here. It seems that quite a few organisations decided the implications might be profound, since there were four interveners in the case: Friends of the Earth; Greenpeace UK; Office for Environmental Protection; and West Cumbria Mining Limited. By the way (as we learn from the judgment), the Office for Environmental Protection is a public body established under section 22 of the Environment Act 2021 and sponsored by the Department for the Environment, Food and Rural Affairs. Its principal objective is to contribute to environmental protection and the improvement of the natural environment.
What follows is my quick take on the decision and its significance.
The first point to note is that the decision was a close-run thing, with the ruling being made by a 3-2 majority. The majority seems to have accepted an activist view of the “facts”. As early as the second paragraph, we are told:
…Leaving oil in the ground in one place does not result in a corresponding increase in production elsewhere: see UNEP’s 2019 Production Gap Report, p 50, which reported, based on studies using elasticities of supply and demand from the economics literature, that each barrel of oil left undeveloped in one region will lead to 0.2 to 0.6 barrels not consumed globally over the longer term…
It’s worth drilling down (if you will pardon the pun) into the detailed reasoning of the Court and the precise issue on which the case was decided, when considering whether the implications are as far-reaching as the BBC article suggests. It revolves around Environmental Impact Assessments (EIAs) carried out as part of an application for planning permission for a development. Significantly, we are told (at paragraph 3) that the purpose of an EIA:
is to ensure that the environmental impact of a project is exposed to public debate and considered in the decision-making process. The legislation does not prevent the competent authority from giving development consent for projects which will cause significant harm to the environment. But it aims to ensure that, if such consent is given, it is given with full knowledge of the environmental cost.
Paragraph 4 identifies the key issue (that I suspect must apply to all and any new development projects that involve the extraction of fossil fuels – hence, no doubt, the intervention by West Cumbria Mining Limited). This is the nub of it:
This appeal raises a question about whether the greenhouse gas (“GHG”) emissions which will occur when oil extracted from an oil well, after being refined, is burnt as fuel must be included in the EIA required before development consent may be given for the extraction of the oil. The answer to this question depends on whether, for the purpose of the applicable legislation, the effect on climate measured by the GHG emissions that will occur upon combustion of the oil is an effect of the project on climate.
In this case the planning authority (Surrey County Council) initially told the developer that its EIA should include an assessment of the combustion emissions from the oil and gas to be derived from the proposed well, so as to assess their impact on the climate. Then, however, the Council changed its mind:
It accepted as sufficient an environmental statement which assessed only direct releases of greenhouse gases at the project site over the lifetime of the project and contained no assessment of the impact on climate of the combustion of the oil. In consequence, no information about the combustion emissions was made available to the public or considered by the council before it granted development consent for the project.
The sole issue for the Supreme Court was whether it was lawful for the Council to restrict the EIA in this way.
This is where it gets technical. The legislation covering the issue is delegated legislation, passed in order to implement an EU Directive from the pre-Brexit era (the legislation hasn’t subsequently been amended or repealed, so still applies in full). Specifically, the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 are one of a number of UK statutory instruments designed to implement Directive 2011/92/EU of Page 4 the European Parliament and of the Council, as amended by Directive 2014/52/EU. In essence, the Directive obliged member states (as the UK then was) to ensure that all developments that might have a significant effect on the environment should require development consent “and an assessment with regard to their effects on the environment”. The Directive included a number of projects deemed to have an effect on the environment, and these include:
Extraction of petroleum and natural gas for commercial purposes where the amount extracted exceeds 500 tonnes/day in the case of petroleum and 500 000 cubic metres/day in the case of gas.
It was agreed that the project in this case falls within that definition. Time and space don’t permit to follow the analysis line by line, nor do I wish to bore the reader any more than necessary. Suffice it to say that the Directive says that impact on the climate is to be included, and that when making the assessment, it must include “the direct effects and any indirect, secondary, cumulative, transboundary, short-term, medium-term and long-term, permanent and temporary, positive and negative effects of the project.”
The European legislation makes it clear that greenhouse gas emissions must be taken into account, the rationale being:
Over the last decade, environmental issues, such as … climate change … have become more important in policy making. They should therefore also constitute important elements in assessment and decision-making processes.
Climate change will continue to cause damage to the environment and compromise economic development. In this regard, it is appropriate to assess the impact of projects on climate (for example greenhouse gas emissions) and their vulnerability to climate change.
We are told (at paragraph 25) possibly to the relief of some and to the alarm of others that:
There are separate statutory regimes for – to give just a few examples – projects related to forestry, harbour works, marine works, pipeline works, offshore petroleum works and nuclear reactor decommissioning works.
Time and space do not permit me to analyse the other relevant legislation. However, I have no doubt that this topic will be re-visited in due course, possibly in early course, as the usual climate litigants go to Court to explore the boundaries of the other pieces of legislation. However, if anyone is sufficiently interested to explore further, then at paragraph 26 we are told that:
The regulations applicable to projects for offshore petroleum production in an amount exceeding 500 tonnes per day (and therefore falling within item 14 of Annex I to the EIA Directive) are the Offshore Petroleum Production and Pipe-lines (Assessment of Environmental Effects) Regulations 1999 (SI 1999/360). Under those regulations, the authority responsible for deciding whether to grant development consent and for carrying out an EIA when required is the Secretary of State.
Returning to the facts of this case, the developer’s EIA contained no information about the global warming potential of the oil that would be produced by the proposed well site. Instead it was confined to the direct releases of greenhouse gases from within the well site boundary resulting from the site’s construction, production, decommissioning and subsequent restoration over the lifetime of the proposed development. The majority decision paraphrased the developer’s reasons for proceeding in this was as being because the downstream emissions from any oil and gas to be extracted were not part of the proposed development and were in any case outwith the control of the developers. Having initially requested the more far-reaching from of EIA from the developers (one that would consider the emissions from burning the oil and gas produced) the Council then accepted the version of the EIA submitted by the developers.
The case, before reaching the Supreme Court, had been before a High Court Judge, who rejected the application, and also the Court of Appeal, who similarly rejected it, but by a 2-1 majority. Interestingly, then, between the three levels of Court, five Judges rejected the application and four approved it. However, that’s not how it works. The Supreme Court is the senior (and final appellate Court), and the 3-2 majority there is the one that matters. Also worth noting, in the surreal world we now inhabit:
The submissions made by the Office for Environmental Protection do not take sides between the parties but explain the reasons for its concern that the decisions of the lower courts, if upheld, “could have an adverse effect on sound environmental decision making and hence on environmental protection and the improvement of the natural environment.”
In other words, although the Secretary of State opposed the application, and urged the Supreme Court to uphold the decisions of the lower Courts, the Office for Environmental Protection, while claiming not to take sides, effectively did so, thus undermining the Secretary of State’s position.
Once again, it’s worth reminding ourselves (as the majority speech in the Supreme Court did, at paragraphs 52 & 53) of the precise issue at stake in the case:
The overall issue in the appeal is whether, under the EIA Directive and the 2017 Regulations, it was lawful for the council not to include the combustion emissions in the EIA for the proposed project.
The council could not lawfully grant planning permission for the project unless an EIA had been carried out which complied with the obligation to “identify, describe and assess in an appropriate manner … the direct and indirect significant effects” of the project on (among other factors) “climate”: see regulation 4(2), reflecting article 3(1) of the EIA Directive. If the significant effects of the project on climate include the combustion emissions, the council was therefore obliged to assess them as part of the EIA and its failure to do so renders the decision to grant planning permission unlawful. On the other hand, if (as the judge held) the combustion emissions were incapable as a matter of law of being regarded as “effects of the project” on climate within the meaning of the legislation, then the council was right not to assess them and its decision to grant planning permission was lawful. Its decision was also lawful if (as the majority of the Court of Appeal held) the question whether the combustion emissions are “effects of the project” on climate within the meaning of the legislation was a matter of evaluative judgment for the council and the council’s reasons for leaving the combustion emissions out of account were lawful.
The speech of the majority is comprehensive, covering policy, legislation and case law. To consider it paragraph by paragraph would require too much space the significant indulgence of the reader. Instead (please forgive me, dear reader) I quote in full those parts of the majority judgment (paragraphs 150-154) which I believe form the main elements of the majority’s reasoning and allowing the challenge to the planning appeal granted in this case:
…I do not accept the premise that it would be wrong for a local planning authority, in deciding whether to grant planning permission, to take into account the fact that the proposed use of the land is one that will contribute to global warming through fossil fuel extraction. Of course, the authority must have regard to national policy; and in so far as UK national policy requires great weight to be given to the benefits of petroleum extraction, in particular for the economy, that must be taken into account. But it does not follow that the planning authority has to ignore adverse effects on climate of a proposed project or adopt an interpretation of what constitute such adverse effects which is contrary to reality. Just as beneficial indirect effects of a project on climate – for example, the “green” energy that would be generated by a project to develop a wind farm or solar farm – are clearly a relevant matter for the planning authority to consider, so corresponding adverse effects are also a material planning consideration.
Quite apart from this, the arguments based on UK national policy have two flaws. First, it is wrong to interpret the meaning and scope of the EIA Directive by reference to UK policy and legislation (or that of any other country) for controlling GHG emissions and regulating petroleum production. Such matters are irrelevant to the proper interpretation of the EIA Directive. It is not simply that policies which Member States (or non-Member States) choose to adopt are generally irrelevant in construing EU legislation, though that is true. It is also necessary to recall that the aim of the EIA is to establish general principles for assessing environmental effects. UK national policy is clearly relevant to the substantive decision whether to grant development consent. But it is irrelevant to the scope of EIA. For reasons discussed earlier, the fact (if and in so far as it is a fact) that a decision to grant development consent for a particular project is dictated by national policy does not dispense with the obligation to conduct an EIA; nor does it justify limiting the scope of the EIA.
The second, related flaw is also fundamental. The argument made is a version of the claim that, if information about environmental impacts would make no difference to the decision whether to grant development consent (or on what conditions), it is not legally necessary to obtain and assess such information in the EIA process. Such a contention was resoundingly rejected by the House of Lords in Berkeley. It misunderstands the procedural nature of the EIA. The fact (if it be the fact) that information will have no influence on whether the project is permitted to proceed does not make it pointless to obtain and assess the information. It remains essential to ensure that a project which is likely to have significant adverse effects on the environment is authorised with full knowledge of these consequences.
Looking at the matter more broadly, it needs to be recognised that the process of EIA takes place in a political context and that the information generated by an EIA will be considered within a political decision-making arena. It is therefore inevitable that economic, social and other policy factors will outweigh environmental factors in many instances. But this does not avoid or reduce the need for comprehensive and high quality information about the likely significant environmental effects of a project. If anything, it enhances the importance of such information. Nowhere is this more so than where issues arise relating to climate change.
It is foreseeable in today’s world that, when development consent is sought for a project to produce oil, members of the public concerned will express comments and opinions about the impact of the project on climate change and the potential contribution to global warming of the oil produced. Indeed, as Lewison LJ observed (at para 148 of the judgment of the Court of Appeal) the officers’ report recorded that such objections were made in this case. (Objections raised by two local parish councils were specifically mentioned in the report along with other public representations.) Lewison LJ thought that the fact that objections based on climate change were noted and considered by the council was a reason tending to show that the EIA was adequate because “it cannot be said that [the council] completely ignored the potential global warming effect of the proposed development”: para 149. In my view, this fact shows the opposite. It confirms the inadequacy of the EIA. It is not good enough that the potential global warming effect of the proposed development was not “completely ignored”. The effect should have been properly assessed so that public debate could take place on an informed basis. That is a key democratic function of the EIA process. It was not fulfilled here.
The reference to democracy is, I think, particularly interesting. I find it curious that the Supreme Court can refer to UK legislation and policy, implemented by the democratically elected government of the country, and decide that those factors are outweighed by supranational considerations. Perhaps I am being unfairly simplistic in making that point, but democracy increasingly seems to be in the eye of the beholder.
The minority decision seems to have resulted from seeing things very differently, and recognising that local planning authorities are dealing with local issues, and shouldn’t involve themselves in matters relating to national democratic debate or at an international level (Paragraphs 252-257):
The EIA Directive contemplates that decisions on the grant of planning consent will often be taken by local or regional authorities, rather than national authorities…The procedures and rules laid down in the Directive are intended to be appropriate for decision-making at local or regional level by such authorities.
This is an important point. As explained above, scope 3 or downstream greenhouse gas emissions are addressed by central governments at the level of national policy. That is the general position for all Member States, and the UK. Decisions regarding the distribution of greenhouse gas emissions between different sectors of the economy, the striking of a balance between promotion of national economic objectives and reduction of greenhouse gas emissions in various sectors and the rate of transition sector by sector towards the achievement of the 2050 net zero target are all matters of national policy to be determined by central Government.
The same is true for debates with other states regarding the methodology for accounting for scope 3 greenhouse gas emissions, where these emissions may well occur in states other than the state where emissions which are closely associated with an originator activity arise (such as scope 1 and, typically, scope 2 emissions). For example, oil extracted at the Site may be transported to be refined in another state, and the fuel so produced may be transported to be used by motor vehicles in other states. Which states should have responsibility pursuant to the Paris Agreement and other international initiatives for accounting in terms of their national carbon figures for greenhouse gas emissions arising from the production chain running from extraction of minerals through refinement (in this case) or the manufacture of products, to the end use of the refined fuel or manufactured products, and the methodology to be used to identify and allocate such emissions, are matters for international discussion and agreement between states.
These are all “big picture” issues which a local planning authority such as the Council is simply not in a position to address in any sensible way.
Further, it would be constitutionally inappropriate for a local planning authority to assume practical decision-making authority based on its own views regarding scope 3 or downstream emissions and how these should be addressed in a manner which would potentially be in conflict with central Government decision-making and its ability to set national policy. This is true in relation to the UK and in relation to EU Member States as a whole, especially in light of the international and EU frameworks set out above according to which carbon budgets and carbon reduction policies are set at the national level. The EIA Directive as amended by the 2014 Directive was not intended to cut across this basic decision-making architecture in relation to meeting the challenge of climate change.
The information to be provided in the EIA process pursuant to the EIA Directive is intended to inform the decision whether to grant development consent for a project, and if so on what conditions, in a way that enables the decision-making authority – typically a local authority – to engage in practical decision-making within the remit of its own competence under existing procedures for development consent (see article 2(2) of the EIA Directive, para 220 above). In doing that it should decide whether a particular project is in accordance with national policy (for which purpose the NPPF and nPPG have been promulgated by the central Government) and consider whether there are appropriate adjustments which can be made to the project to mitigate its environmental impacts, including to reduce the direct and indirect greenhouse gas emissions associated with it. The EIA process is intended to furnish information to enable the planning authority to exercise its judgment about such matters, not to create some general databank about possible downstream or scope 3 effects which could not bear on what the planning authority has to do…
Paragraphs 261 and 262 do seem to me to have considerable logical merit:
In addition to this, the general scheme of the EIA Directive indicates that the entirety of scope 3 or downstream greenhouse gas emissions do not qualify as “indirect effects of a project” within the meaning of the Directive. Oil extracted from the Site will have to be refined before it is used. Construction of a refinery would constitute a project listed within Annex I to the EIA Directive (at point 1: para 230 above) for which an EIA would be required. Greenhouse gas emissions from the construction and operation of such a refinery would have to be assessed in the context of an EIA for that project. It would be disproportionate for them to have to be assessed twice, once in the context of an EIA for that project and also in the context of an EIA for the Site.
Also, to construe the EIA Directive as requiring this would lead to incoherence. The decision-making processes by authorities deciding on each separate project are not integrated, and so would have a tendency to cut across each other on a potentially determinative issue as is alleged to arise here if each authority made its own assessment of the extent and significance of the same set of greenhouse gas emissions for the project on which it had to decide; all the more so where the projects might be in different Member States. The authority carrying out an EIA in relation to the refinery project, which clearly has the authority under the EIA Directive to determine such matters, might decide that the direct and indirect greenhouse gas emissions of the refinery could be limited or mitigated in an acceptable way (including by having regard to whatever national policy was applicable in that Member State). But the authority carrying out an EIA in relation to the oil well might reach different conclusions about that (and might not give weight to the national policy of the different Member State of the refinery). The EIA Directive has no mechanism for resolving this sort of difference of view, nor for allocating decision-making authority in relation to such matters, other than by maintaining a focus on the particular project in question and greenhouse gas emissions associated with that project.
At paragraph 332, I suspect a hint that the minority think the majority is guilty of judicial law-making:
…in the present context, the EIA Directive, interpreted according to its terms, has a valuable role to play in relation to mitigating greenhouse gas emissions associated with projects for which planning permission is sought, but it should not be given an artificially wide interpretation to bring all downstream and scope 3 emissions within its ambit as well. That has not been stipulated in the text of the EIA Directive, is not in line with its purpose and would distort its intended scheme.
If I am right in my suspicions, then those concerns are all too reflective of the criticisms of the recent ECHR case about the Swiss lady pensioners, which I considered here. Be that as it may, the majority decision prevails in this case, whether it constitutes judicial activism or not. What can we conclude?
First, and most importantly, although the majority decided the planning permission granted in this case was unlawful because it failed (in the view of the majority) to comply with a legal obligation to contemplate all emissions that would result from the development, include “downstream” ones, it imposes no obligation on a planning authority to refuse planning permissions simply because the level of greenhouse gas emissions associated with all aspects of the development might, however marginally or significantly, be considered to be relevant to the issue of climate change. A planning authority can, so far as I can see, still conclude that such a development should be allowed to proceed.
Nevertheless, I suspect that the decision of the majority in the Supreme Court will give significant encouragement to climate campaigners to challenge any permission granted for a development aimed at extracting fossil fuels. I anticipate an avalanche of litigation might well result from this decision. I also suspect that fossil fuel companies might well (to the extent that they haven’t already done so) give up on the UK as a bad job.
Thirdly, comments contained in the majority speech about the “beneficial” climate effects of developments such as those for wind farms will result in planning authorities being even more reluctant than they are now to refuse planning permission for such developments. It is a significant irony that a majority decision predicated on the needs of democracy may well make it more likely that the objections of local residents directly adversely affected in those cases will be sidelined for the sake of the “greater (global) good”. Meanwhile, outside pressure groups and campaigners will be aided and encouraged to object to fossil fuel developments that don’t directly adversely affect them, by praying in aid the climate change imperative.
It’s worth noting that the Climate Change Act (CCA) barely featured in this decision. Ironically, it was prayed in aid to an extent by those seeking to uphold the planning consent, who pointed out that under the CCA only emissions within the UK’s territory are counted. That counted for nought with the majority decision. The decision turned on the interpretation of a statutory instrument implementing an EU Directive. To that extent, the decision could be effectively reversed by amending the statutory instrument in question. However, on the assumption that we in the UK are likely in just over two weeks’ time to be looking at a Labour government with a super-majority, then that isn’t going to happen any time soon.
Was the hype in the BBC article justified? In this case, for once, I think perhaps it was.
Climate Scepticism 
Thank you for taking the time and expending the effort to read the judgement and to write this useful and important analysis. Feeling rather depressed by England’s lacklustre performance against Denmark this afternoon, I’m not in the mood to comment now. Perhaps tomorrow.
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Depressed, Robin? You should try reading the judgment!
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Barking mad:
“The Guardian view on the climate and the election: a gulf divides science from policy”
https://www.theguardian.com/commentisfree/article/2024/jun/20/the-guardian-view-on-the-climate-and-the-election-a-gulf-divides-science-from-policy
But I fear they got this bit right:
On Thursday, a supreme court decision that planning decisions must take account of future greenhouse gas emissions raised the likelihood of more legal challenges to fossil fuel infrastructure. Caution has been the watchword of Labour’s campaign. Rulings like this should make it easier to be bold.
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I fear there’s no doubt this judgment gives the litigious alarmists a significant extra boost:
“Future impact of proposed fossil fuel projects must be assessed, UK court rules
Landmark judgment says planning bodies must account for burning of extracted fuel when considering site proposals”
https://www.theguardian.com/environment/article/2024/jun/20/landmark-supreme-court-ruling-throws-doubt-on-new-uk-fossil-fuel-projects
See this, as just one instance:
It also gives a boost to a lawsuit challenging the government’s decision to approve a controversial new coalmine in Whitehaven, Cumbria, which had been delayed pending the Horse Hill decision. West Cumbria Mining, the company behind Whitehaven, had been allowed to intervene at the supreme court.
Matthew McFeeley, a solicitor for South Lakes Action on Climate Change, which is leading the case, said: “This is an important recognition by the supreme court that the downstream impacts of fossil fuel projects must be adequately considered, and calls into question the secretary of state’s approach in relation to the Cumbria mine. The parties will now make submissions to the high court about the effect of the supreme court’s judgment and whether the decision was unlawful on the basis that it considered the coalmine would be ‘carbon neutral’.”
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Angels, dancing, head, pin – words that kept jumping into my head while struggling to follow learned counsels’ deliberations . There may be a case that negative proximate effects outweigh positive ones but this is speedily reversed as beneficial downstream consequences of available energy ramify. No words adequately express its foundational importance which surely renders otiose any local consideration beyond the parish boundary.
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So even without the CCA 2008, Green activists are now using the courts to shut down coal, gas and oil extraction in this country based upon the effect that the burning of such fuels will have on the climate. In the case of the Whitehaven coal mine, planning permission will now be challenged on the basis of the environmental impact that the burning of the extracted coal will have, even though most of it will be exported.
It seems there is no stopping this now. They are going to take down the British fossil fuel industry, using the courts and using politicians. Labour will be more than happy to oblige and do their bit. In five years time, I doubt there will be any fossil fuels being extracted in this country and we will all be much poorer and more miserable for it.
Which brings me right back to an argument I have consistently made: that we must address the appallingly bad science which forms the beating heart of all this nonsense. Because, if it can be demonstrated scientifically that the “the effect on climate measured by the GHG emissions that will occur upon combustion” is not nearly as ‘settled’ as activist scientists would have us believe, then the entire basis of the EIA is undermined and the legality of this new planning consideration is immediately brought into doubt. You can’t assess the environmental impact if the science you are using to estimate that impact is shown to be seriously in question. Taking down the entire edifice of consensus climate science might now be the only way of stopping these mad, bad Greens who are determined to trash democracy and imperil our safety, security and prosperity as a nation in order to fulfil their insane dreams. At the moment, they are literally rubbing their hands with glee. I also think this ruling is not coincidental with Labour poised to take office.
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Well, wish I hadn’t read that just before bed!
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Jaime, that’s quite a powerful argument – you are beginning to persuade me. Acceptance of the science was integral to the majority decision.
The more I think about the implications of this case, the more worried I am for the future of this country’s energy supply.
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Mark, I’m afraid we should now be very worried, with the mad bad Green Blob now effectively controlling our entire energy policy, which has been put well beyond the reach of representative democracy.
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Ross Clark in the Spectator, developing the theme more widely:
“How Keir Starmer plans to rule through the courts”
https://www.spectator.co.uk/article/how-keir-starmer-plans-to-rule-through-the-courts/
His conclusion:
If and when the Tories return to power, they will find it a lot more difficult to tackle the drift of political power to the courts. By then, a Starmer government will have further entrenched the process. If the polls are correct, Britain won’t be so much electing a government for the next five years as voting for the permanent enfeeblement of parliament and representative democracy.
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“North Sea oil and gas drilling ‘threatened’ after landmark Supreme Court ruling”
https://www.scotsman.com/news/politics/north-sea-oil-and-gas-drilling-threatened-after-landmark-supreme-court-ruling-4673239
A landmark fossil fuels ruling in the Supreme Court could have huge ramifications for new North Sea drilling licences, with an Edinburgh University academic warning all new developments could now face fresh legal challenges...
…Stuart Haszeldine, professor of geology at Edinburgh University, described the ruling as a “really fundamental judgment” that would have a “worldwide impact”, not just on the North Sea.
“What this ruling says is that in a development which involves fossil fuels, then the emissions from those fossil fuels should be considered by the planning authority, whether local or national,” he said. “Previously, emissions for oil and gas extraction were not considered. That means in the conversation about licensing future oil and gas fields offshore, anything that is still to get an environmental impact assessment, that impact has to include the impact of all the carbon emissions.”
Prof Haszeldine added: “Any company going forward has to do this environmental impact assessment, which opens that company open to litigation, and a very huge commercial risk for oil and gas companies to open up new licences. This now changes the legal rules. They can still go ahead, and companies can try and bid for a license, but they will be taken to a court if they proceed. They can’t just pretend theirs is a special development. This will have a worldwide impact, because it’s the most senior court, and under the European environmental regulations, so will impact Europe.”
Environmentalists argued developments such as the Rosebank field north-west of Shetland, should also not “get the go ahead now”...
…The result raises leaves UK fossil fuels at risk, with the judgement setting a potential precedent that emissions now needing to be considered in planning.…
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Even if we accept Jaime’s argument about tackling the bad science behind Net Zero, I believe that such a task will be a long-term project. In the shorter term we need a political voice that will, in the spirit of Dunkerque, be, for now, a rear-guard action to oppose this anti-fossil fuel madness.
The imminent GE allows us to vote for those parties that are opposed to Net Zero; a few seats may be won by such parties.
In the longer term we can fight the dodgy science (with all the risks that entails as per Robin’s arguments), but we can also fight the dodgy economics (via EROEI), and via the rank hypocrisy of those who use fossil fuels to further their anti-fossil fuel aims.
The war is not lost, but is has become harder in light of yesterday’s legal ruling (which, as per the Litigation thread, relied on an EU Directive!?).
In haste, John C.
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Yes, John, an EU Directive (as implemented in UK law via a planning statutory instrument) was the key piece of legislation underpinning yesterday’s ruling.
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So blaming hydrocarbon extraction companies has taken yet another big leap. It has long been the practice to blame oil companies for the ‘evils’ of burning hydrocarbons and its effects upon climates. But instead, if there are such ‘evils’, they should be attributed to those that burn the hydrocarbons – the consumers not the providers. So now, as has already predicted, the entire hydrocarbon industry in Britain is now in peril. Will petrol stations now be charged for the pollution emitted by their customers?
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Alan, it seems to me that the “logic” behind the majority decision in this case could well imply that any application for planning permission for a petrol station should include an EIA which covers the greenhouse gas emissions arising from all the petrol and diesel to be sold by it. It may be, however, that the smaller scale of such a development might see different rules applying. I haven’t checked. Time will tell.
If the law takes us down this route, then there is an obvious danger of double counting, and the reasoning of the two dissenting Supreme Court judges would then appear to be more intellectually robust than that of the majority.
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“This appeal raises a question about whether the greenhouse gas (“GHG”) emissions which will occur when oil extracted from an oil well, after being refined, is burnt as fuel must be included in the EIA required before development consent may be given for the extraction of the oil. The answer to this question depends on whether, for the purpose of the applicable legislation, the effect on climate measured by the GHG emissions that will occur upon combustion of the oil is an effect of the project on climate.“
That raises the question of whether the ruling applies to hydrocarbons used in chemical process such as the Cumbrian coal which is used as a reducing agent rather than for “combustion”.
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Robin might take comfort from this published by John Constable at NZW, which tends to support his theory that Labour will be forced into a quick climbdown on Net Zero:
https://www.netzerowatch.com/all-news/supreme-court-planning-decision
Thing is though, “without the support of a fossil fuelled economy” essentially implies that the country is done for. Fossil fuel companies and investors are not going to come back in a hurry once they leave.
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You have to ask, are these courts/judges really able/should to make these big judgment’s?
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Alan Kendall (8:31am June 21):
I agree wholeheartedly. Here in Aus we have faced that issue for quite some years now.
As it stands here, the various Courts within that hierarchy have been producing contradictory rulings. This helps the green lawfare groups, of course, as it encourages them to keep at it.
The notion that a miner/producer is responsible for another country’s emissions on burning imported fuel is akin to likening the miner/producer to a drug dealer. It’s so much easier to clobber the producer rather than the consumer because of the imparity of numbers; years of MSM propaganda labelling mining as anti-social, environmentally destructive, greedy activity has now paid social dividends.
Obviously, domestic and industrial energy supply consequently remains both increasingly expensive and unreliable. Currently the east coast of Aus is experiencing a quite cold winter period – the AEMO (supposed monitor of energy supplies) is doing another of its’ nudges and screeching that gas supplies are at risk of running out before winter is over. Although the AEMO does these nudges constantly, in between them it nudges in the opposite direction, so “Wolf!!” is also a tactic. This is really disturbing as I live in a quite cold mountainous area and depend on gas heating to survive in winter.
My deep industry contacts are really worried by this perpetual “Sovereign Risk”.
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dfhunter,
I think on average senior Judges are more intelligent than politicians, and in theory are every bit as able as politicians to make these judgments. Read both the majority and dissenting judgments in the Supreme Court decision, and you can’t fail to be struck by the erudition and mental powers on display. Whether they should make them is another matter entirely. The politicisation of the Courts is, I think, a disturbing development. In the end, politicians make the laws, and judges have to interpret them. There was a time when that was relatively uncontroversial, but now, thanks to lawfare and well-funded “green” pressure groups, the judges are being dragged almost daily into politics. However hard judges try to be objective, it must be difficult for them. I felt the views of the majority regarding climate change leapt out of the early paragraphs of the majority judgment.
Of course, the US Supreme Court has been heavily political for a long time, probably since its formation, not least since POTUS gets to select its membership. I always regarded the British system as superior to that of the US, but now it seems the two are converging. Worrying times.
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Another reason for valuing this site – the erudition and willingness of experts in a wide variety of disciplines to comment (as Mark above), sometimes at length, upon items in the news. And the good humour. All we really need is a daily cross-word.
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Jaime quoted NZW’s Dr John Constable who had written, “With this decision, the fossil fuel industry has been pushed closer to the edge of extinction, and consequently the countdown to distressed policy correction has begun.”
The words that worry me most in this Dr Constable quote are his oft-repeated, “… the countdown to distressed policy correction …” since they indicate we have just taken further steps over the ever-steeper EROEI cliff towards energy insecurity, blackouts and, potentially, civil unrest.
This is NOT a happy place to be, and that is why I have been seeking off-ramps for the uni-party’s policy makers who, like the nursery rhyme’s Grand Old Duke of York, have marched us up to the top of the energy-insecurity hill. However, unlike the Grand Old Duke, they have no intention (yet?) of marching us down again.
One key decision point will be the ordering (or not!) of the 30 to 50GW of CCGT that even the Civil Service says we need.
Potentially dangerous times. Brace for impact. Regards, John C.
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John: I assume by off-ramp you mean a convenient way out. I think road-block might be a better analogy – i.e. no way forward.
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Yes, Robin, off-ramp for me means a convenient and (very, very importantly) a face-saving way out e.g. blaming the previous Tory administration, as you have previously suggested.
But what happens if, instead of an off-ramp, the government finds your road-block? That very realistic prospect is the one that worries me. Regards, John C.
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What happens John is that they stop – albeit reluctantly – because it’s impossible to go any further.
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Robin, stopping will be good – very good. But don’t they then need to reverse out (via whatever off-ramp can be found) before the economic damage and civil strife become too severe? Or am I missing something? I really, really hope I am missing something!
Currently I fear we have just moved up the rankings in the Net Zero crash-test-dummy stakes. Are we now a nose ahead of New York State? Faites vos jeux.
https://www.manhattancontrarian.com/blog/2024-6-19-in-case-you-think-someone-has-the-answer-to-new-yorks-looming-energy-disaster
Regards, John C.
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“Britain’s wilful destruction of its oil and gas industry is beyond belief
Supreme Court emissions ruling on Surrey drilling site will merely displace production from one place to another”
https://www.telegraph.co.uk/business/2024/06/22/britains-wilful-destruction-oil-gas-industry-beyond-belief/
...In the process, it [the Supreme Court] has also put the kibosh not just on any prospect of oil production from this tiddler of a prospect, but in effect on all future hydrocarbon development in the UK, including very likely the planned Whitehaven coal mine in Cumbria and the Rosebank oil field in the North Sea.
The Supreme Court’s ruling is a death blow for an industry that has long been treated like a pariah, but is worth £60bn a year in exports, employs more than 30,000 people directly and indirectly, and last year contributed around £5.2bn of tax revenues.
That you would deliberately choose to destroy such a useful source of economic wellbeing would in any rational world be regarded as almost beyond belief...
…It’s completely mad, but no matter; the pursuit of net zero must come first. No matter also that the decision will actually make no difference at all to emissions. It’s not just that the amounts projected to flow from Horse Hill are too trivial to be of any significance. It’s also that oil and gas not produced in the UK will simply be produced somewhere else instead.
Their lordships’ ruling merely displaces production from one place to another.
More than 70pc of Britain’s energy needs are still accounted for by fossil fuels; on any realistic assessment, this is likely to remain the case for years if not decades to come, never mind any attempt to transition away from them.
The effect of turning off domestic production is therefore to further increase Britain’s economic dependence on imports.
Already there is a substantial trade deficit in energy. According to the latest Office for National Statistics “Pink Book”, we imported £117bn of fuels in 2022 and exported £60.2bn. With the North Sea in precipitous decline, this deficit will widen, putting further pressure on the balance of payments. Already the UK has the second worst and most persistent current account deficit in the G7.
It might be argued, I suppose, that this doesn’t matter if renewables fill the hole left by oil and gas. Yet thus far there has been little sign of it...
…Greenhouse emissions are, to the contrary, continuing to hit new records globally. Here in Britain, we are merely offshoring a large proportion of them.
“Clean energy is still not even meeting the entirety of demand growth,” says Nick Wayth, chief executive of the London-based Energy Institute. “Arguably, the energy transition has not even started.”
There is little point in Britain self-destructively bending the knee before the climate change bandwagon if everyone else is studiously ignoring it. Biden’s America may have caught the green energy bug, but it is also still investing billions in oil and gas. Only in London and Brussels are the two thought to be incompatible…
…The Court has also in effect defied government policy, which is to “max out” the nation’s conventional oil and gas reserves. Once more, it stands accused of judicial overreach.…
...All over the shop, the courts are seizing powers that rightfully belong to elected politicians. Is it any wonder that European economies are in such a mess? There seems to be almost no development that is not open to legal challenge.
What used to be seen as a bulwark against the abuse of executive power threatens instead to become an instrument of economic paralysis. Like the fog in Dickens’s Bleak House, it has cast a pall over almost everything...
…Will the last roughneck to leave the country please turn the lights out.
Actually, Jeremy, I don’t think anyone will need to turn the lights out – they will already have gone out.
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To get some idea of Milibrain’s absurd, muddled, mixed up magical thinking on energy (he’s due to become our Energy Secretary remember, this is how he is quoted in the Telegraph, re. abandoning the Tory ban on new gas boilers in 2035:
https://www.telegraph.co.uk/business/2024/06/22/labour-will-scrap-tories-2035-ban-new-gas-boilers/
Yes, Mr Milibrain, your government is actively driving away investment in North Sea gas and oil exploration, whilst simultaneously claiming that the profits from North Sea gas and oil industry will be ploughed into GB Energy ‘sustainable clean energy’ projects! Projects that will be HUGELY more expensive than fossil fuel derived energy as explained by David Turver this morning. But you want to incentivize us all to switch to heat pumps rather than gas heating, which rely upon intermittent ‘clean’ electricity, the cost of which will keep increasing for the foreseeable future. You want to drive up demand for ever increasing costly electricity, whilst increasing our reliance upon foreign imports of gas in order to back up the intermittent nature of the generation of that electricity! You’re not even talking about plans to build the new CCGTs which will be required to operate this backup.
Yep, the lights are going to go out and the North Sea Gas and Oil industry WILL be decimated soon after a Labour victory unless Labour do a serious handbrake turn immediately (not just a cease and desist), not only on energy policy, but on Starmer’s ideological ambition to strip Parliament of its sovereignty and hand it over to the Supreme Court (the Surrey Council ruling is a warning shot across the boughs in that respect). Otherwise, John’s ‘off ramp’ looks like it will be widespread civil unrest, blackouts, job losses, poverty and the complete destruction of national energy security.
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Regarding the displacement of extraction from one place to another, the argument made was that for each barrel left in the ground, some fraction of a barrel was extracted elsewhere, i.e. that there was less than 1:1 substitution. I don’t know how this makes logical sense, but it seems to be a justification for the judgement.
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Mark, you rightfully stated earlier that the judges role is to interpret laws passed by politicians. However, you made no comment about whether or not judges this time were correct in their assessment that the law now indicates that oil producers drilling new wells should be ‘credited’ with responsibilities normally accredited to their customers. I would welcome your legal opinion. Should we be blaming the Court for its decisions?
I know that you might argue that you don’t have sufficient expertise, but yours is almost certainly the most informed and I, for one, would greatly appreciate it.
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This is really great climate reporting Mark. I’m thinking about the Jessop/Guernier interaction on the back of it. Maybe later.
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Alan,
I am flattered that you don’t think it’s above my pay grade to express an opinion (I suspect it is).
I confess to finding the reasoning in the majority opinion to be very persuasive. They had to interpret some UK delegated legislation which was passed to implement an EU Directive. The back story to the EU Directive certainly facilitated, and possibly made inevitable, the majority decision.
I found the minority decision to be sensible, insofar as it recognises the dangers resulting from the majority decision, and there were aspects of the minority opinion that I also found persuasive.
If pushed, I would say that the majority probably got it right, based on what they had to work with. It’s what they had to work with that is the problem, and that’s down to the EU and to the poor quality of UK politicians. The Directive was passed between the Brexit vote and its implementation. The delegated legislation was therefore ripe for repeal when the Government passed what was ultimately a heavily watered down repeal of EU-inspired legislation that it deemed to be unnecessary or inappropriate. The fact that it wasn’t repealed speaks volumes as to the quality of our politicians.
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Referring back to Jaime Jessop’s comment abut the need to expose the science for what it is, there is one technical aspect that should be readily understood and actionable in the short term (and relates also to the 1:1 substitution matter ). And that is the non-equivalence of a resource that is on tap when required and one whose use is restricted to its chance availability – “dispatchable” in our jargon. This simple notion cuts right across all of commerce so presumably is embedded in many case histories and capable of common-sense understanding. If their lordships had in mind an emissions saving via renewables then the substitution would be greater than 1, not less, as the required ff GW backup leads to a nice recursion.
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To put it another way, I thought the Supreme Court decision is more readily justified than that of the recent ECHR decision in the Swiss ladies case, which I definitely regard as judicial law-making, inappropriate meddling in politics, and interference with democracy.
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Well said Mark – I wholly agree with you re the Supreme Court and the ECHR. I’m getting tired of people blaming UK judges when the blame lies squarely with our foolish politicians.
PS to Richard: it”s Guenier not Guernier.
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Thank you for that perspective Mark. Definitely food for thought. So when Sunak goes on to X and says this:
https://x.com/RishiSunak/status/1804799897050194068
What he actually means is: there is NO difference between the Tories and Labour, because the Tories delivered a BRINO which left in place EU legislation which is now being used to destroy the oil and gas industry in Britain, which is exactly what Labour plan to do anyway once they take power. Thanks to Johnson’s half-baked Brexit, they now have a Supreme Court ruling which they can defer to in order to mitigate their own political responsibility if they feel uncomfortable in the hot seat.
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Max Beran,
Yet again I have to apologise about WordPress. Sorry it dumped your comment in spam, where I have just spotted it.
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Thank you Mark for giving your considered opinion upon this matter. I am appalled to find that my comment may have caused you to believe I felt you incapable (rather than unwilling) of offering your opinion. You have “previous” where you were reluctant, stating that either you were out of date or lacked experience. I beseeched you to ignore any such excuse because I really wanted your opinion (and I believed others here would place equal value upon it).
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Alan, on the contrary, I am flattered that you rate my opinion so highly, while I am conscious that while I like to think I had a pretty sharp legal brain once upon a time, that was many years ago. I know that I am out of date and off the pace.
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A most interesting take on the Supreme Court decision. Well worth reading carefully: Judicial activism will not solve climate change
By Andy Mayer
An extract:
Mayer’s conclusion:
Amen to that.
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Another first class article by Ben Pile in today’s Daily Sceptic:
Climate Lawfare Will Destroy What Remains of Britain’s Industries
His conclusion:
Along with the excellent article by Andy Mayer to which I referred above, this presents a clear and very worrying perspective on the implications of the Supreme Court decision.
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“Sarah Finch: climate activism ‘early adopter’ behind supreme court win
UK campaigner who fronted lawsuit on future impact of fossil fuel projects says she fears for future despite ruling”
https://www.theguardian.com/environment/article/2024/jun/26/sarah-finch-climate-activism-uk-supreme-court-win
Well, this is just great, isn’t it?
Despite the ruling, Finch is not optimistic about the way things are going. “I hope the judgment is a tipping point and will make it much harder for any new oil and gas sector to be exploited both in the UK and in other countries with similar legislation. But there’s already more than enough oil and gas and coal in production to wreck the climate, even if we stopped all new production today, so I just don’t see us weaning ourselves off it fast enough.
“But every tonne of carbon released makes things a tiny bit worse so I think you just have to do what you can do. I feel it helps my climate anxiety to be doing something even if I think it’s futile in the face of the challenges.”
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This article (from NZW) is also interesting, but not in my view so much as either Andy Mayer’s or Ben Pile’s:
The Supreme Court’s curious source by Bruno Prior Was the judgment on the Horse Hill oil well a case of judicial activism?
The conclusion:
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