The authors are barristers at Garden Court Chambers: Marc Willers KC, Abigail Holt, Alex Grigg, Oscar Davies, and legal assistant Liam McKenna.

In June 2024, the Supreme Court handed down a ground-breaking landmark judgment in the case of Finch v Surrey County Council. This ruling has significant ramifications for fossil fuel extraction not only in the UK but also globally, by redefining how planning authorities assess the environmental impacts of such projects.

The Supreme Court ruled that the Environmental Impact Assessment (EIA) Directive (and the EIA Regulations 2017 that transposed the Directive into UK law) should be interpreted so as to require a planning authority to assess the downstream greenhouse gas (GHG) emissions of a fossil fuel extraction project, before deciding whether to grant planning permission for the development. 

The Supreme Court allowed an appeal, brought by Sarah Finch, and quashed a decision by Surrey County Council to grant planning permission for oil extraction for a period of 20 years at a site known as Horse Hill in Surrey. 

The Supreme Court’s decision marked the successful end of a five-year legal battle by campaigner Sarah Finch and the Weald Action Group. They have consistently argued throughout the lengthy proceedings that the Council’s failure to assess the downstream GHG emissions, that would inevitably arise from the combustion of the oil extracted from Horse Hill, was an error of law and rendered its decision to grant planning permission unlawful. 

The Supreme Court agreed with Ms Finch (by a majority of three to two) and concluded that it was inevitable that GHG emissions would result from the burning of the oil produced, that those emissions were clearly indirect effects of the development, and that the Council’s failure to assess and consider the impact of those emissions on the climate and global warming was unlawful. 

In their clear and well-reasoned judgment, the majority (Supreme Court Justices Leggatt, Kitchen and Rose) placed significant emphasis on the need for decision makers to be provided with full information on the environmental impact of a proposed development, and for there to be public debate before a decision is taken. 

In order for the process to have the necessary democratic legitimacy, the public must be able to participate in environmental decision making and be informed of the environmental impacts of a proposed development, so that they can comment upon them before a decision is made to grant planning permission; after all, as the Justices noted, ‘You can only care about what you know about.’ 

The majority rejected a number of the arguments raised by the Council, Horse Hill Development Ltd and the Secretary of State, including the unevidenced suggestion that if oil was not extracted from Horse Hill, it would simply be substituted by oil produced in another location. 

The majority also noted that there was no principle that ‘if environmental harm is exported it may be ignored’. In doing so, the Justices noted that ‘Climate change is a global problem precisely because there is no correlation between where GHGs are released and where climate change is felt’ and that ‘the effect of the combustion emissions does not depend on where they occur’. 

This ground-breaking judgment has and will continue to have wide ramifications in the UK and beyond its borders. In the Rosebank and Jackdaw oil fields case, the government announced that it would not challenge the judicial review, brought by environmental campaign groups Greenpeace and Uplift, against the decision to grant consent to drill those oil fields in the North Sea. Most recently, in that case Edinburgh’s Court of Session sided with campaigners and climate experts, stating that the decision—along with the approval of the smaller Jackdaw gas field—failed to consider the carbon emissions from burning the extracted fuels. It resulted from an agreement by all parties that the decisions were unlawful in light of the Supreme Court judgment in Finch, as the Environmental Impact Assessments did not consider the climate impact of the downstream emissions of burning the oil and gas.

The question was whether the decisions should be quashed and considered afresh, on a lawful basis or, as the developers argued, a declaration was sufficient and the projects should be allowed to proceed despite the decisions being unlawful. The Court ruled that the decisions should be quashed. Lord Ericht stated that: “Having considered all the circumstances of the case and the various public and private interests, I have reached the conclusion that the balance lies in favour of granting reduction. The public interest in authorities acting lawfully and the private interest of members of the public in climate change outweigh the private interest of the developers. The factors advanced by Shell, Equinor and Ithaca in respect of their private interest do not justify the departure on equitable grounds from the normal remedy of reduction of an unlawful decision.” (paragraph 151).

The Supreme Court’s decision is the first of an apex court which addresses the interpretation of the EIA Directive in the context of fossil fuel extraction, and is likely to be followed by courts in other jurisdictions. For instance, it is likely to influence decisions taken in EU countries where the EIA Directive is applicable.

The judgment is also likely to be given significant weight by judges determining the same issue in countries beyond the EU and so could have an effect on the future of fossil fuel extraction across the globe. International courts may well reject any geographical or temporal limitations on the consideration of environmental impacts. The global nature of issues like climate change means that emissions contribute to worldwide effects, regardless of where they occur. Thus, the assessment of a project’s impact would include all significant effects, irrespective of their geographic origin or the timeframe in which they occur.

With climate change intensifying, this judgment underscores an urgent reality: if governments and corporations are serious about meeting their climate commitments, they must address the emissions produced by fossil fuel use – not just the processes of extraction. The Supreme Court’s ruling makes clear that accountability for climate impacts cannot be evaded through legal loopholes or jurisdictional gaps. This case has set a high standard for environmental decision-making – one that could shape energy policies for years to come.