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9 February 20232 minute read

EIA and downstream effects - one to watch in 2023

As discussed in our most recent episode of Outline, the Supreme Court has granted Sarah Finch permission to appeal in an important case considering the environmental assessment of downstream effects.

Last year, a majority of the Court of Appeal upheld the High Court’s decision that Surrey County Council had acted lawfully by not requiring the EIA for a crude oil extraction project to include an assessment of the impacts of greenhouse gas emissions arising from the end use of the oil once refined.

Importantly however, the Court of Appeal did not rule out such effects needing to be subject to environmental assessment, saying that whether such effects were a “likely significant effect” of a development proposal is a matter of planning judgment in each case. Their decision therefore rested on whether the Council’s reasons for not requiring the EIA to assess end-use emissions were lawful, with a majority of the Court narrowly concluding that they were.

As things stand it is therefore important that downstream effects are not ignored when undertaking environmental assessment, and where they are scoped out the reasons for doing so need to be robust. It will not always be possible to scope out downstream effects, and where they can’t be the challenge of properly assessing such effects is likely to be significant, as will be the question of whether and how they can be mitigated.

The Supreme Court will get its say later this year but in the meantime, the Court of Appeal has not made our lives any easier.

Finch On Behalf of the Weald Action Group, R (On the Application Of) v Surrey County Council & Ors [2022] EWCA Civ 187 (17 February 2022)