TAPAS.network | 2 July 2024 | Editorial Opinion | Peter Stonham

Most decisions have climate consequences. But can we really seek to embrace them all?

Peter Stonham

THE LAST FEW YEARS have seen much debate and legal challenge on how the impacts of transport projects, particularly highway schemes, should be properly assessed and appraised for their wider environmental consequences. A significant number of major road schemes have been delayed whilst the various stages of challenges have been pursued by environmental activists going to court.

Recent court judgements have further explored the issue of the wider consequences of policy and project decisions about, and relating to, the emissions and carbon impacts of transport activity. Such concerns are not only of the direct outcomes in terms of Co2 and other external pollutants from new transport infrastructure and schemes, but also about the implications through transport uses of the fossil fuel and energy extraction and generation processes of other sectors.

These reflect new deliberations about broader issues relating to non-transport industry activities that form part of the energy and carbon creation sector now being challenged for their downstream impacts. They raise difficult questions over what planning bodies and agencies responsible for signing off major projects of various kinds must consider before they can give them the green light.

The latest ruling by the Supreme Court has been in relation to oil extraction by a new drilling proposal in Surrey, and the second and third order consequences beyond the extraction activity itself, through to the uses to which the oil is put.

It comes only two months after The High Court ruled for the second time that the UK’s overall climate strategy – its Carbon Budget Delivery Plan – was in breach of the UK Climate Change Act targets.

The Court was persuaded that the government’s plans simply don’t properly reflect the significant risks associated with them. The Court found that the government’s assumption that the plans would nonetheless be delivered in full was irrational and lacking any evidence.

Apellant ClientEarth successfully challenged not merely the process by which the climate strategy was adopted, but also the rationality of the Secretary of State’s conclusion that Government plans and policies “will enable” the carbon budget to be met, as required by s.13 Climate Change Act 2008.

The High Court ruled that the Carbon Budget Delivery Plan was inadequate to deliver necessary emissions reductions and must be revised within one year- a requirement now falling to the new Government being elected this week.

In documents released as part of the case, which was brought by Friends of the Earth, Client Earth and Good Law Project, government officials said they had “low or very low confidence” that around half of the emissions reductions required would be achieved by the government’s existing climate policies. Agriculture and land use sectors have been a particular focus for these concerns - but the read across to transport that some are now making is not surprising as the sector struggles to make any real impact on its carbon outputs.

The Committee on Climate Change (CCC) - whose role it is to scrutinise government climate plans - analysed the CBDP in 2023, reporting that credible policies were in place to deliver just 19% of the emissions savings required to meet the UK’s Paris Agreement targets of a 68% cut in emissions by 2030, with transport amongst the leading defaulters.

Campaigners say this court victory now leaves no doubt that the government must deliver a climate plan that is fit for purpose, and can achieve the UK’s climate targets, rather than relying on high-risk technologies and uncertain policies, and ensure that the required climate action doesn’t fall victim to short term politics and postponements to previously set deadlines.

Alongside these UK Court decisions the The European Court of Human Rights had been ruling on a number of failings in Swiss policies regarding climate change , and seen as potentially being extended to other countries. The court found in favour of the Swiss association Elders for Climate Protection -- 2,500 women above the age of 64 -- who had complained that Swiss authorities’ “failings” on climate protection could “seriously harm” their health.

Elderly women are particularly vulnerable to the effects of heatwaves, which due to climate change are becoming more frequent and intensifying, they argued.

The court agreed, ruling that the Swiss state’s climate policy failures violated Article 8 of the European rights convention, which guarantees the “right to respect for private and family life”.

The latest UK ruling relating to the Surrey oil extraction project is particularly interesting because it involves the role of an individual local authority in embracing environmental impacts such as climate change in its decision-making. Although this particular case related to the drilling and extraction of oil, it could well have implications for local authority decisions on airport expansion, highway schemes, or other transport projects.

Indeed, some may believe that even decisions on the opening of new supermarkets or other industrial projects should have a downstream environmental dimension, as retailers will be selling items with undesirable consequences, for example, their plastic packaging , and businesses seeking development consent will be using processes that create waste, emissions, and maybe carbon- embedded non recyclable products.

Could it soon be the role of the local authorities to take all these second order externalities and impacts into account?

The formal position, as considered in the Horse Hill oil extraction case, is that before planning permission can be granted for a development project which is likely to have significant effects on the environment, legislation in the United Kingdom requires an environmental impact assessment (“EIA”) to be carried out. The legislation applicable in this case is contained in the Town and Country Planning (Environmental Impact Assessment) Regulations 2017, which implemented European Union Directive 92/11/EU in the UK. This requires an EIA to identify, describe and assess the likely “direct and indirect significant effects” of the project on the environment, including (among other factors) the impact on climate (for example, the nature and magnitude of greenhouse gas emissions). The process of assessment must include public consultation. The legislation does not prevent the planning authority from giving consent for a project that is likely to cause significant harm to the environment; but it requires the authority to reach a reasoned conclusion on the environmental impact and to take this conclusion into account in making its decision.

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The latest court ruling is particularly interesting because it involves the role of an individual local authority in embracing environmental impacts such as climate change in its decision-making. Although this particular case related to the drilling and extraction of oil, it could well have implications for local authority decisions on airport expansion, highway schemes, or other transport projects.

In this case a developer applied to Surrey County Council for planning permission to expand oil production from a well site at Horse Hill near Horley in Surrey. The proposed project would involve the extraction of oil from six wells over a period of 20 years. The project comes within a category for which an EIA is compulsory (“Extraction of petroleum ... for commercial purposes where the amount extracted exceeds 500 tonnes/day”).

The developer argued that, as regards the impact of the project on climate, the scope of the EIA should be confined to the direct releases of greenhouse gases from within the well site boundary during the lifetime of the project; and that the EIA need not include an assessment of the greenhouse gas emissions that would occur when the oil extracted from the wells was ultimately burnt elsewhere as fuel. The council accepted this approach. Its decision to grant planning permission for the project was therefore made without assessing or taking into account the emissions that will occur upon combustion of the oil produced, the Supreme Court pointed out .

The claimant, a local resident, applied for judicial review of the council’s decision. She argued that the decision was unlawful because the EIA was required to, but did not, include an assessment of the combustion emissions. The High Court initially rejected the claim, holding that the combustion emissions were not within the legal scope of the EIA Directive and 2017 Regulations; or alternatively, whether to assess them was a matter of evaluative judgment for the council, which had given legally valid reasons for deciding not to do so. By a majority, the Court of Appeal then upheld the judge’s decision on the second of those grounds, but the claimant then successfully appealed to the Supreme Court.

By a three-to-two majority, the Supreme Court allowed the appeal, and held that the council’s decision was unlawful because the emissions that will occur when the oil produced is burnt as fuel are indeed within the scope of the EIA required by law.

This case, and others of a similar basis that have been through the UK’s legal system in recent years and are continuing to do so, have clearly become a matter of considerable concern at government level for their repeated high-profile embarrassment of ministers in front of judges, and the frustration they bring to Government departments and agencies in pursuing infrastructure investment in transport and other fields. Indeed a wish to avoid this process has been one of the major drivers behind seeking to lift major projects out of the normal planning and decision-making system and give them, and the ministers making decisions on them, a degree of protection from legal challenge. This has involved their designation as Nationally Significant Infrastructure Projects and by the newly revised National Networks National Policy Statements which set out defined criteria for the processes used. This may not stop these processes themselves soon becoming the potential subject of legal challenges however.

With the continued cross-party talk of ‘speeding up’ the planning process, it will be interesting to see if a new Labour government will follow the trajectory of the previous Conservative one in pursuing this procedural streamlining — or bulldozing, depending on your point of view. Some of those on the green left flank of Labour may soon find themselves having to consider if they are happy with whatever the party comes up with on planning policy and the decision-making and appraisal framework for new developments, both national and local.

Meanwhile, local authorities will be hoping for some clarity and protection in the basis of their decision-making following the Surrey Horse Hill oil drilling judgement. And more specifically, proper guidance on how to put the consideration of sustainability and carbon impacts into their Local Transport Plans without facing those being challenged for environmental shortcomings too.

Peter Stonham is the Editorial Director of TAPAS Network

This article was first published in LTT magazine, LTT895, 2 July 2024.

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