Scope 3 emissions under EIA: coming to a town near you?: What effect will the judgment of R (Finch) v Surrey County Council have on indirect impacts under environmental impact assessment?

This article is the fourth in the series of our LLB student essays, bringing together a selection of writings from our ‘Law and Sustainability in the Anthropocene’ course.  

 To find out more about this Honours course, visit our UofG Course Catalogue. 

By Ayla Bariskan

Overview 

Scope 3 emissions, also known as ‘downstream’ or ‘end-use’ emissions, refer to the greenhouse gasses produced indirectly through the activities of an organisation (Carbon Trust, no date). For example, as consumers, when we use oil to power our cars or to heat our homes, we are producing emissions that can be traced back to the company who sourced and sold that oil in the first place. The above figure provides a helpful visual of the different categories of emissions (Net0, 2022).  

The recent case of R (Finch) v Surrey County Council gives us an insight into how Scope 3 emissions are dealt with by the court, specifically in relation to environmental impact assessment (EIA) (Supreme Court, 2022). The case also prompts consideration of what the recognition of such impacts could mean for us in the future.  

Environmental Impact Assessment 

EIA is a mechanism which allows potential environmental effects of a proposed project to be considered in the decision-making process. This assessment can be influential in determining whether a project receives planning approval and on what grounds.  Therefore, it is crucial the law in this area is clear and reviewed often to keep up with the changing environmental picture (Fisher, Lange and Scotford, 2019).  

EIA is codified in EU legislation internationally through the EIA Directive (EIA Directive). It has also been implemented in national legislation, for example, in the English Town and Country Planning Regulations 2017 (TCP Regulations 2017). Each type of legislation makes explicit reference to direct and indirect impacts, both of which must be included in the EIA process. However, there is no clarity as to how far indirect impacts should be considered.  

As illustrated in the above figure, indirect impacts cover a range of activities occurring at many different stages of a product’s life cycle, which adds to the complexity of the situation.   

(R) Finch v Surrey County Council  

The case of (R) Finch v Surrey County Council provides us with a recent example of this contention. Here, the appellant argued that planning permission should not have been granted in respect of proposed oil wells in her local area due to the Scope 3 emissions that would occur when the oil was used by consumers (Brodies LLP, 2021).   

Both the High Court and the Court of Appeal previously held that EIA was not required to consider emissions from the end use of products originating from the proposed development (Thomson Reuters, 2022). They found that Surrey Council did not act unlawfully in allowing the project to begin, due to the lack of a sufficient causal connection. The issue for the Supreme Court now is the extent to which these downstream impacts must be considered in the EIA process (Brodies LLP, 2021).  

Broader Implications  

Notably, the Office for Environmental Protection (OEP) was granted permission to intervene in the appeal.  This is a significant step as it is the first time the OEP has requested to intervene in an ongoing case. The OEP expressed its hope that the Supreme Court would bring greater clarity to this area of law in order to ensure proper decision-making that will contribute to better environmental protection (OEP, 2023), which suggests that both the law itself and the court’s approach may be in need of revision.  

Although the decision of the Supreme Court has not yet been released, overturning the previous judgment could have a significant impact on similar proposals. One example is the Whitehaven coal mine, which has already proved controversial (Gosling, 2023). As this will be the UK’s first major coal mine in decades, it seems like a huge step back for environmental sustainability progress. However, overturning the judgment in (R) Finch v Surrey County Council may allow planning permission to be appealed.  

Of course, we should also consider any negative aspects this could have. Extending indirect impacts under EIA would inevitably make it more difficult for projects to receive planning permission in the future and would elongate the EIA process, restricting and slowing down innovation. This could affect us more directly than we might wish to believe. For example, supporters of the Whitehaven coal mine praise the project for the employment opportunities and money it will bring to the town (BBC, 2023).  

In my opinion, despite this divergence of views, greater responsibility should be placed on the companies to which these Scope 3 emissions can be traced back. As individuals, it can be easy to feel as though we are unable to make a difference. The law provides a normative system which regulates in order to set standards for how countries and other actors should behave  (Montini, 2020). Therefore, by enforcing responsibility for the entire life cycle of the products sourced, we set a clear precedent for sustainability going forward.