Oil's Well That Has Its Environmental Impact Assessed Well

A report from the frontlines of the lawfare war

First, you must get a good legislature; and next, you must keep it good.

-Walter Bagehot, The English Constitution

Barely a week seems to go by these days without there being some significant court judgment issued somewhere in the world which in some aspect or other concerns the response to climate change (see, for example, a previous post of mine, here). This is not a benign development. Indeed everybody - regardless of their views about climate (mine are pretty centrist) - ought to be concerned about this phenomenon.

This is because the development of this new form of environmental lawfare is emblematic not so much of a desire to bring about reductions in carbon emissions through judicial review, but rather the strengthening of a particular form of governance, in which democratic decision-making is forced to give way to expert rule by a process of enfeeblement at the hands of the courts. The latest illustration of this is R (on the application of Finch on behalf of Weald Action Group) v Surrey County Council and ors [2024] UKSC 20 (‘Finch v Surrey County Council’), handed down by the UK Supreme Court on 20th June 2024. In keeping with its genre, while being ostensibly about ‘climate change’, the case is really about this much more fundamental shift in the way governance is carried out.

In this post, I’ll first go over the facts of the case and the judgment as briefly as I can. This will not be straightforward, as the whole thing including dissenting judgments is over 100 pages long and concerns subject matter that is almost purposefully designed to be opaque to the layperson. But stick with it. Luckily, as we shall see, the heart of the dispute is actually fairly easily understood once the layers of unnecessary complication have been stripped away. After describing the case, I will draw some conclusions about what it all means, in the immediate sense in relation to environmental policy and then in the broader sense in respect of constitutional affairs. And finally, I will make some comments about the philosophical and (shock! horror!) theological roots of these developments - and what the future likely holds.

Finch v Surrey County Council: A Brief Outline

The dispute between Ms Finch¹ and Surrey County Council is relatively easily summarised. In 2019 the Council granted planning permission for a new well to extract crude oil at a place called Horse Hill, near Horsley. It did this after taking into account an Environmental Impact Assessment (EIA) provided by the developer, Horse Hill Developments Ltd (HHDL). This EIA was provided pursuant to something called the Town and Country Planning (Environmental Impact Assessment) Regulations 2017, which themselves implement an EU Directive - Directive 2011/92 EU (the ‘EIA Directive’). This piece of legislation requires EIAs to be reviewed before approval of development projects that are likely to have an effect on the environment (which would include the Horse Hill oil well), and that such EIAs should cover the ‘direct and indirect significant effects’ of their respective projects on factors including the ‘land, soil, water, air and climate’.

I hope you’re with me so far. It may seem a little strange that EU legislation was the heart of the dispute, given that Brexit happened four years ago, but remember that the facts took place in 2019, before the UK had left the EU, so the courts have to apply the rules that were applicable at that time (and, indeed, the relevant UK regulations which implemented the EIA Directive are still in force anyway as far as I can tell).

HHDL’s EIA for the Horse Hill project addressed (amongst many other things) greenhouse gas emissions that would be associated with the development. But the EIA’s scope was limited in this respect to releases of such gases ‘resulting from the site’s construction, production, decommissioning and subsequent restoration’. Basically, the developer only spoke to the impact of the project on the climate through emissions to the extent of what is referred to throughout the judgments as ‘the project itself’ or ‘the development itself’ (meaning the emissions generated during construction, maintenance, etc.) rather than the downstream consequences of extracting crude oil - which would obviously eventually be refined and combusted and emit carbon into the atmosphere. The Council was satisfied with this, and gave approval.

The argument of Ms Finch was that the Council had acted unlawfully in giving approval on the basis of the EIA provided. This was because the EIA Directive states that EIAs should cover ‘direct and indirect significant effects’ of a project on the ‘land, soil, water, air and climate’, and that this ought to include the carbon emissions that would result from the eventual combustion of all of the crude oil that would be extracted. Obviously this would have resulted in a very different EIA, and a very different estimate as to the amount of carbon emitted - to the tune of some 3.3 million barrels’ worth of oil.

The dispute, then, can in this sense be understood along the lines of a quibble over accounting. Does an EIA that has to take into account the ‘direct and indirect significant effects’ on the climate of an oil well have to include an estimate of the greenhouse gas emissions of the eventual refinement and combustion of all of the crude oil that would ultimately be extracted - or just of the emissions associated with ‘the project itself’? If the former, then the Council was acting unlawfully in approving the Horse Hill project without having received such an EIA. If the latter, then it was acting lawfully. Simple as that.

An ‘Artificially Wide Interpretation’

Regular readers will remember that no legal rule is ever determinative in itself in litigation, and Finch v Surrey CC is a perfect example. Legal rules have to be interpreted, and interpretative approaches will differ. What are the ‘direct and indirect significant effects’ of an oil well, and do they include the final industrial use of the oil, over which the developers would have absolutely no control?

The majority in the Supreme Court, for whom Lord Leggatt gave the lead judgment, were convinced that since every drop of oil extracted at Horse Hill would eventually undergo combustion, it simply had to be the case that the EIA should have included an estimate of downstream emissions after all the oil had been extracted, refined and combusted. And it was artificial to suggest that one could separate out the carbon emissions of ‘the project itself’, or ‘the development itself’, as distinct from the emissions associated with the eventual consumption of the oil. English judges come out with some classic lines sometimes, and this is a humdinger, speaking to this point:

Outside the realms of Kantian metaphysics, there is no such thing as ‘the development itself’ which enjoys some sort of separate noumenal existence. There are only the human activities which constitute the physical development.

In other words, the human activities constituting the development at Horse Hill were to be carried out so as to achieve the extraction of crude oil which everybody accepted was ultimately for combustion after refinement. This necessarily made the eventual combustion of said oil an ‘indirect effect’ of the project - it simply could not be otherwise.

The minority, for whom Lord Sales gave the lead judgment, disagreed, and ratified the approach adopted by Holgate J in the High Court when the case was first heard at trial. Holgate J had held as a matter of law that the EIA Directive was concerned not with carbon emissions in respect of climate change, but rather enabling local bodies like Surrey County Council to make practical decisions about planning applications with sufficient ‘project-focused’ information - such as what the land would be used for, the potential consequences for local people, the potential for pollution to be emitted in the local area, and so on. And Lord Sales adduced scads of evidence that this was indeed what the Directive had been intended for. It was therefore entirely appropriate for the Council to have accepted the EIA which it did, on the basis that local bodies are:

[N]ot responsible for national climate change policy, do not have the legitimacy or authority to second-guess assessments of national bodies in relation to it, do not have powers to impose their own judgments regarding national or global climate change policy, are not equipped to make the relevant judgments about how the national or global economy should adjust to climate change, and are not provided with coherent criteria to make assessments regarding the downstream effects of projects…

Any assessment of the ‘direct and indirect effects’ of a project in this context were in other words limited - Kantian metaphysics aside - to those of ‘the project itself’ rather than some comprehensive assessment of all possible future consequences. And the Council had been sensibly avoiding usurping the role of national government in relation to environmental policy.

Lord Sale concluded that the EIA Directive should not be given an ‘artificially wide interpretation’ so as to to ‘press it into service’ in the fight against climate change. That issue would take care of itself at national level. As far as Surrey County Council was concerned, its job was to assess the environmental impact of the project - whether direct or indirect - in Surrey, rather than throughout the world in the form of eventual greenhouse gas emissions, and since the Council had done this it had not acted unlawfully at all.

Ultimately, it was the position adopted by Lord Leggatt which won out (by 3-2), but I find it difficult to disagree with Lord Sale’s assessment, both on his reading of the Directive and its associated documentation and revisions, and also as a matter of common sense. If the ‘indirect effects’ on the environment of a development are not limited to ‘the project/development itself’ but are extended to include literally any downstream consequence, then the logic would have to follow that the developers of any project sufficiently important to need to provide an EIA will have to give one measuring potential carbon emissions down a lengthy chain of causation without principled limit.

To give an idea of how absurd this might become, not long ago the Irish Supreme Court, in the case of National Trust for Ireland v Kilcenny Cheese [2022] IESC 8, was forced to determine whether an EIA for a proposed milk processing plant ought to have included an estimate for the increase in the number of cattle that would be needed to supply it, partly on the basis that since when cows break wind they emit methane - a greenhouse gas. The Irish court mercifully saw sense here and ultimately determined that increasing the number of cow farts (they euphemistically referred to ‘enhanced methane emissions’ from an enlarged ‘national herd’) could not be called an ‘indirect significant effect’ of the project. But thanks to the decision in Finch, a UK court may very well in similar circumstances have to find the opposite.

Chipping Away at Democracy

The decision in Finch will plainly have the effect of further gumming up the already Byzantine planning application process in the UK - this was no doubt the motivation for the litigation. EIAs are going to have to become longer; they are going to have to include yet more information to dispute and query; yet more expense is going to have to into their preparation. (Only a cynic would observe that yet more money will also be made as a consequence by the people who write EIAs, so I will refrain from doing so.)

But what is really interesting about the decision, as I will explain here, is its broader constitutional context. On the one hand, it tells us a great deal about the way things are going with respect to the phenomenon of lawfare, which is by no means limited to environmental matters. And, on the other, it gives the lie to the notion - currently gaining traction in the Tory press here in the UK and amongst Tory Cabinet ministers - that the forthcoming Labour government is going to do truly revolutionary things with respect to the manner in which law and politics interact.

As Finch v Surrey CC shows, this is far from the truth. If Labour does get elected and governs by ‘passing overarching pieces of legislation and relying on judicial activism to do the rest’ then this will largely be in keeping with the way in which the Tories themselves have acted in government, and indeed what governments of all stripes in all countries have been doing for centuries - though with a particular intensification in the period roughly since the New Deal in the USA and the interwar blooming of collectivism in the UK. This, in short, is the replacement of an idea of law as a body of simple, publicly declared rules for governing conduct, with a notion that it is instead supposed to delegate authority for the governing of conduct to expert bodies of managerial regulators. And this, in turn, has for obvious reasons had the effect of slowly but surely chipping away at the freedom of action of democratically elected bodies, from national governments down to local councils.

Considering Finch in Context

It is important then to take a step back for a moment. Traditionally in the UK constitution judicial review (the process by which courts review the legality of decision-making by public bodies) has been light-touch and has involved a fairly small number of easily-understandable rules. Decisions should have been reached at the end of a procedurally fair (i.e. unbiased) process that respects natural justice, should not have been ultra vires (i.e., outside of the scope of the respective body’s legal powers), should not have taken into account irrelevant considerations, and so on and so forth. But that was about it. There was no scope for what is called ‘substantive review’, meaning an analysis of the actual substance of a given decision, except in extremis (the famous ‘Wednesbury unreasonableness’), both because elected bodies (and bodies appointed by elected officials) were thought to know better, and because they were considered to be more representative - they had skin in the game.

For a long time, this minimalist or deferential approach to judicial review has been eroded from two directions. On the one hand courts themselves have become more activist (see previous posts of mine on this subject here and here). But, probably more importantly, legislation (whether primary or secondary) has been increasingly deployed to smuggle substantive review in through the back door by mandating that particular - often very detailed - decision-making processes be used in order to achieve a substantive effect. Often this has been at the behest of the EU, but by no means always - and indeed the Human Rights Act 1998 and Equality Act 2010 can both be understood as subspecies of this phenomenon in that they both require public bodies to make decisions giving weight to particular imperatives and in certain ways so as to realise some broad set of public policy goals.

Finch is exemplary in this regard, in that it concerns a piece of legislation (the EIA Directive) that consists of 16 pages of fine-grained detail with regard to what an EIA is and what it ought to contain, and what then a public body must lawfully take into account when taking a decision to approve a project. This is technically, of course, a matter of process in the sense that the actual decision whether to give approval remains with the public body in question, but the process is carefully arranged to produce a particular effect. (In the case of the EIA Directive this is ‘to contribute to the protection of the right to live in an environment which is adequate for personal health and wellbeing’.) Strictly speaking, provided one is prepared to squint very hard at the legislation and the way it is interpreted, it does not quite give license to a court to engage in substantive review of decisions - but to all intents and purposes it might as well do, since it will almost inevitably open a public body up to the threat of legal challenge on procedural grounds if it departs from the overarching objective of the legislation by an iota in the decision it reaches.

And that brings us to a related phenomenon, of which Finch is also emblematic - the deliberate encouraging of lawfare on the part of legislators. Article 6 of the EIA Directive stipulates that ‘the public’ should be given certain information about a proposed development ‘early in’ the decision-making procedure, but it also stipulates that ‘the public concerned’ should have access to a broader category of all ‘relevant information’ throughout the decision-making process.

This sounds benign, of course, and in line with one of the stated goals of the Directive (‘to guarantee rights of public participation in decision-making’). But, looking for a definition of ‘the public concerned’, one finds in Article 1 (2) (e) that it includes not just ‘the public’ as such but also ‘non-governmental organisations promoting environmental protection’. The import of this hardly needs spelling out: the Directive is purposefully designed in part to facilitate strategic litigation by environmental NGOs by requiring public bodies to issue them with all ‘relevant information’ about any development being considered for approval, in order that they can frame an objection through a request for judicial review ‘early in’ the process. This is of course what happened with respect to the Horse Hill development itself, and it appears to be what happens across the piece with regard to developments of its type.

Lest this tendency to egg on strategic litigation be attributed to the scheming of the pesky European Commission, though, successive UK governments - and this is what gives the lie to the notion that there will be any particular difference between Labour and the Tories in this regard - have also gone out of their way to create quangos with specific remits to engage in just the sort of interventions which charities and NGOs might make. Hence, indeed, we find that one of the interveners in Finch was none other than the Office for Environmental Protection, an ‘independent non-departmental public body’ established in 2021 to ‘protect the environment’ by ‘holding government and other public bodies to account’.

This (taxpayer-funded, naturally) unit made submissions to the Supreme Court which Lord Leggatt praised in his judgment as ‘particularly helpful’. He later, somewhat disingenuously, described the Office as ‘not tak[ing] sides between the parties’ (despite having made submissions on behalf of one them and not the other), saying that it was only ‘concerned’ that an ultimate finding in favour of Surrey CC ‘could have an adverse effect on sound environmental decision making and hence on environmental protection and the improvement of the natural environment’. It is worth noting in this regard that the High Court and a very eminent Court of Appeal had both found in favour of the Council in earlier decisions regarding the dispute, so it seems that the Office for Environmental Protection had a ‘significant direct effect’ of its own on the eventual conclusion to the litigation.

In summary, then, what we see in the decision in Finch is not in any sense radical or unusual; it is merely emblematic of the way in which governance has operated for a very long time, and will continue to operate into the future once Labour take power. The executive decision-making powers of democratically elected bodies are being everywhere enfeebled and attenuated in favour of experts who ‘know better’, often through weaponisation of judicial review, and this a process in which said democratically elected bodies, Parliament not being the least of them - have willingly (perhaps ignorantly or negligently) participated. And the result is precisely the opposite of the much-trumpeted goals of ‘public participation’ and ‘accountability’ which legislation such as the EIA Directive supposedly enshrine - because of course it has the effect of dislocating decision-making from electoral processes entirely, and hence the main route by which ‘the public’ participates in government in the first place.

The Abandonment of Rules

I have written before about these matters in relation to law and governance in respect of so-called ‘energy smart devices’. In that piece, I cited the eminent legal scholar Roger Brownsword’s useful shorthand description of law as having undergone a shift from ‘Law 1.0’ to ‘Law 2.0’; in the former, law is understood as a body of relatively simple, abstract rules in light of which citizens govern their own conduct (for example, ‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it’); in the latter, as I previously put it:

[Law is] understood as policy. Legislation is not created simply to order the conduct of otherwise free citizens. It is created in order to give effect to governmental purposes. It is used not to make clear rules, but to delegate the authority necessary to effect desired changes of some kind within the economy or society, usually to the state’s ever-growing administrative bureaucracy (but also to private companies)….

[Hence] legislatures legislate, not primarily to make rules for ordinary people to follow, but to delegate power to administrative agencies or technical experts (or politicians advised by such agencies and experts) to make ad hoc, flexible rulings; issue guidance and recommendations; publish codes of conduct; give and revoke licenses; and so on as and when they see fit - often with a very wide discretion.

This is observable across the developed world, but what explains it? This will not strike the reader immediately as a theological matter, but it is in fact connected with a very big theological theme - indeed, one that is too big to go into too much depth on here. This is the gradual abandonment of the notion that there is a ‘natural law’, and hence a natural order and ultimately indeed a human nature, and the consequences of that abandonment.

This was all understood long ago. Lon Fuller, writing in the 1960s, observed that:

To embark on the enterprise of subjecting human conduct to the governance of rules involves of necessity a commitment to the view that man is, or can become, a responsible agent, capable of understanding and following rules, and answerable for his defaults.

To govern human conduct through rules (i.e. through the model of what Brownsword would call Law 1.0) was in other words predicated on an understanding of human beings as possessing of free will, and an understanding of autonomous decision-making as being a good in itself. We can choose whether or not to abide by, or break, rules, and to live with the consequences. So a society which is governed by rules is one which has faith in human choice-making and reason. It respects the freedom to decide whether to act morally. And it is willing to accept that to a certain extent rules will not be followed.

Such a society will be one which understands human dignity as being rooted in autonomy, and this can only be a society in which the predominant view is that there is something intrinsically important about allowing people to make decisions based on their own conscience, and hence that there is an underlying objective moral reality that can be discerned by human reason (such that we are able to know what is right and wrong if we apply that reason). And such a society will be governed by a commitment to making rules, and will value rules in themselves, as (at least potentially) reflective of that underlying moral reality. This, in other words, will be a society with an understanding of natural right and natural order - which is to say, a chiefly religious society at least at the civic level.

Fuller contrasted natural law with legal positivism, which sees the validity of law as deriving simply from the belief among law’s subjects that the legal system is indeed valid. The important legal positivist theorists had different ways of describing this (HLA Hart called it the ‘rule of recognition’; Hans Kelsen called it the grundnorm) but the basic idea is the same - the thing that keeps the legal system going as a legal system is the idea that it is a legal system, nor more and no less - it has no relationship to any underlying natural order or objective morality. As long as people accept that the legal system is valid, then it will be valid; the moment a sufficient number of them no longer accept this, then it will collapse as a system of law.

For Fuller, legal positivism always had the tendency to become controlling. Because it is not based on any underlying natural order or system of moral value, it is no respecter of autonomy in itself. Law is justified by what it achieves - the purposes it realises - and not the fact that it reflects a moral framework. To the positivist mindset, then, law is only a means to an end. The reason law is created is to do things. And if one can do things without legal rules, then why retain a vestigial loyalty to the entire practice of rule-making in the first place?

This naturally produces a hostility to Brownsword’s Law 1.0, because rules in themselves achieve nothing, and indeed - as we have seen - do not have to be obeyed. Legal positivism (the notion that there is either no underlying natural order, or that it is not accessible to us if there is) is therefore for Fuller characterised by a suspicion of rules as such. What positivism is all about is, rather, achieving purposes. Positivist legal philosophy, then, is naturally and inevitably drawn to the type of regulatory approach which Brownsword labelled Law 2.0. Rather than making rules and leaving it to individual choice and conscience (and fear of consequences) as to whether they are obeyed, it is far better to avoid making rules at all, and govern human conduct instead through the exercise of discretion. Law does not then have to address the individual human subject as an autonomous agent able to discern right and wrong. Rather, its primary task is the delegation of authority to the experts and regulators who will exercise discretion on everybody’s behalf.

It follows that since law is really only useful insofar as it achieves purposes, then why not simply ‘press it into service’ in the name of, say, the fight against climate change, and why not indeed enlist the judiciary to that end through the weaponisation of judicial review? And why not do so in such a way as to realise the purposes of the regulatory apparatus - an apparatus which understands itself to be the truly legitimate governing framework - through quangos like the Office for Environmental Protection acting in cahoots with campaign groups and NGOs? And why not indeed bulldoze through any vestigial and petty remnants of democracy that regrettably continue to exist, like Surrey County Council, in the name of the greater good?

This goes a long way towards describing the reasons for our current predicament, wherein the exercise of governing human conduct through accessible, general rules is increasingly looked upon as quaint at best and dangerous at worst, with the preference instead being to govern through regulatory command (or, even worse, ‘nudging’) via delegation of authority to experts. The contemporary phenomenon of lawfare can be understood as for the most part facilitating this process - quite deliberately - in that it, as in the case of Finch, provides a route by which expertise (so construed) is given rein to intervene in democratic decision-making so as to in effect replace it, and all with the imprimatur of judicial authority behind it.

Those who are serious about tackling this problem need, then, to have a grasp of its origins. It is not that ‘woke’ activists and green campaigners have hijacked the judiciary, or that the judiciary has been politicised as such. It is rather that our entire governing framework, and especially the way we think about the role of law in governance, has shifted very far away from where laypeople still imagine it to be. That is the issue that has to be confronted, and it is not I am afraid going to be solved easily - and certainly not through whinging about it as political commentators on the centre-right are increasingly wont to do. This is because it takes us to questions that cannot be answered merely with white papers or reports by think-tanks, and which are indeed truly foundational: what is the true import of secularisation (a question about which secular people must be concerned most of all), and what is the space for personal autonomy in circumstances of prevailing disbelief in the idea that there is such a thing as natural order and natural right?

1. We have to bow to tradition and behave as though Ms Finch brough the action herself, but of course she is really just an avatar for various environmental NGOs. The conceit is necessary because for the most part in UK public law an application for judicial review can only come from a legal person who has standing - meaning that they are somehow affected by a decision a public authority has made and not a mere ‘meddlesome busybody’.