A recent Supreme Court ruling could delay and scrutinise major UK infrastructure projects.
- The ruling addresses operational emissions, impacting developments like road and airport expansions.
- Known as the Finch ruling, it demands full scope 3 emissions consideration in environmental assessments.
- The government will consult on new guidance for oil and gas firms in response to the ruling.
- The ruling could cause secretaries of state to request further EIAs from developers.
In a ground-breaking decision, the Supreme Court’s recent ruling has the potential to alter the landscape of infrastructure project assessments in the UK. Developers proposing Nationally Significant Infrastructure Projects (NSIPs) might face increased scrutiny and delays due to this ruling, which centres on operational emissions. Operational, or scope 3, emissions are those resulting from activities tied to assets outside the direct control of a reporting organisation, yet influenced indirectly in its value chain. This encompasses developments which encourage carbon emissions, such as road or airport expansions.
The case in focus, R v Surrey County Council and others, concluded in favour of campaigner Sarah Finch. The ruling established a precedent that mandates the assessment of the carbon impact of burning fossil fuels, or scope 3 emissions, within the Environmental Impact Assessment (EIA) of new projects. Consequently, secretaries of state may now require developers seeking Development Consent Orders (DCOs) to conduct more thorough EIAs.
This decision was underscored by the government’s announcement of consultations aimed at devising new environmental guidance for oil and gas entities engaged in North Sea fossil fuel extraction. Simultaneously, the government opted not to challenge a court ruling blocking the Rosebank and Jackdaw oil and gas initiatives, a decision hailed by environmental advocates.
The implications of the Finch ruling extend beyond extractive projects. Projects like the Lower Thames Crossing will now have their scope 3 emissions scrutinised more rigorously. Leigh Day’s senior associate solicitor, Rowan Smith, highlighted the necessity of understanding operational emissions from sources such as planes linked to airport expansions, using London Luton Airport’s ongoing DCO evaluation as an example. Smith emphasised the importance of a comprehensive carbon impact assessment within EIAs to avoid potential legal challenges.
Smith further articulated that the ruling introduces legal obligations for secretaries of state overseeing DCO submissions, compelling them to verify thoroughness in the EIAs presented. Failure to do so could result in legal challenges, making the need for robust assessments and decisions that are litigation-proof paramount. Meanwhile, Angus Walker of BDB Pitmans interpreted the ruling as a requirement to assess emissions from unavoidable hydrocarbon combustion, although clarifying that such projects could still progress if emissions impacts are thoroughly considered in decision-making processes.
The Supreme Court ruling introduces significant changes to environmental assessment requirements, impacting infrastructure planning processes.
