36 - The Supreme Court decision in Finch: the…

So, we finally have a judgment in R (Finch) v Surrey CC & Others [2024] UKSC 20 … The case that considers the exciting issue of downstream or “scope 3 greenhouse gas” emissions and the need to assess these under the EIA Regulations.

I am not going to try to add to the very lively debate on LinkedIn over the last few weeks as to whether:

The view of the majority in the Supreme Court amounts to the greatest legal judgment of all time and one that will single handedly save the Planet from us rapacious humans; or
Is an example of judicial overreach and the extension of the EIA Regulations beyond what was ever intended in a way that will open the floodgates and result in the EIA process becoming unduly onerous and unworkable such as to cause yet more delay and complexity in the planning system.

Instead I ask what role did the Aarhus Convention play in this momentous/disastrous [delete as appropriate] decision?

Lord Leggatt (with whom Lord Kitchin and Lady Rose agreed) said having set out the requirements of the EIA Directive said under the sub-heading “Public participation”:

“18. One of the objects of the EIA Directive is to provide for public participation in environmental decision-making.

19. The European Union and the United Kingdom are both parties to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, known as “the Aarhus Convention”, which was adopted in 1998 and ratified by the EU and the UK in 2005. As its full name indicates, this international agreement is designed to secure three rights in relation to environmental matters: a right of access to information, a right of public participation in decision-making, and a right of access to justice. The Aarhus Convention was itself partly based on Council Directive 85/337/EEC of 27 June 1985, which introduced the EIA procedure within the European Economic Community (as it was then called). That directive was amended after the Aarhus Convention came into force by Directive 2003/35/EC to implement obligations arising under the Aarhus Convention and was later codified in the EIA Directive. Recital (18) to the EIA Directive refers to the Aarhus Convention and recital (19) records that:

“Among the objectives of the Aarhus Convention is the desire to guarantee rights of public participation in decision-making in environmental matters in order to contribute to the protection of the right to live in an environment which is adequate for personal health and wellbeing.”

20. Obligations arising under the Aarhus Convention have been built into articles 6, 8 and 9 of the EIA Directive. Thus, article 6 imposes obligations on Member States to inform the public early in the decision-making procedure of various matters, which include details of the arrangements made for public participation in the process; to make available to the public concerned the information gathered where an EIA is required; and to give the public concerned early and effective opportunities to express comments and opinions before the decision on the request for development consent is taken. The “public concerned” is defined in article 1(2)(e) as “the public affected or likely to be affected by, or having an interest in, the environmental decision-making procedures” required by the EIA Directive and specifically includes NGOs promoting environmental protection. Article 8 of the EIA Directive requires the results of such public consultation to be “duly taken into account” in the decision-making procedure; and article 9(1) provides that the public must be promptly informed of the decision taken and of “the main reasons and considerations on which the decision is based, including information about the public participation process.””

Lord sales (dissenting and with whom Lord Richards) agreed refers to the Convention briefly at para. 226 in terms of its citation in various of the recitals in the EIA Directive.

Then at para. 239 he said:

“The Aarhus Convention

239. The Aarhus Convention, referred to in the recitals to the EIA Directive, is concerned, among other things, with promoting access to information and public participation in decision-making in environmental matters. This was followed by Directive 2003/35/EC which amended the previous version of the EIA Directive to align it with the provisions on public participation in the Convention (that is, well before the 2014 Directive). In fact, the relevant part of the Aarhus Convention followed the basic framework for EIA set out in the 1985 Directive. Article 6 of the Convention makes provision for participation by “the public concerned” in decisions on specific activities, which corresponds to an EIA in relation to the grant of planning consent for particular projects. “The public concerned” is defined in article 2(5) in terms similar to the definition of that term in article 1(2)(e) of the EIA Directive (para 219 above). The right to involvement pursuant to article 6 is for the public affected by a specific decision, not for anyone who might be affected by global warming. Article 6(6) of the Convention requires that the public concerned should be provided with, among other things, “a description of the significant effects of the proposed activity on the environment” (sub-para (b)). No further definition is provided. It is not stated that the significant effects “of the proposed activity” include all downstream or scope 3 greenhouse gas emissions and the practice of EU Member States in the period before the 2014 Directive referred to above indicates that they did not regard these as covered by that provision. In like manner, The Aarhus Convention: An Implementation Guide, 2nd ed (2014) published by the United Nations Economic Commission for Europe does not suggest that all such emissions fall within article 6(6)(b) of the Convention (see, in particular, p 151).”

Lord Sales returns to Aarhus later on saying:

“318. The Aarhus Convention was adopted in June 1998, after the promulgation of Directive 97/11. The Annex to the Aarhus Convention copied the revised form of Annex I to the 1985 Directive, including the text at point 14. Later, with effect from 2017, the Espoo Convention copied that Annex as well.

319. This history is significant. There was no indication when the text of Annex I, point 14 was adopted that it was intended to extend the concept of “indirect … effects of a project” in article 3(1) of the 1985 Directive to cover scope 3 or downstream greenhouse gas emissions. Neither the Commission nor any Member State considered that it had that effect: see the discussion in the 2012 Impact Assessment and the 2013 Guidance (paras 233-236 above). Nor was it considered to have that effect in the Aarhus Convention (para 239 above). It was not a revision brought in by the 2014 Directive to address the issue of climate change.”

So, what do we take from this?

The Aarhus Convention played a somewhat modest role in the decision;
The Aarhus Convention was relevant here given that what was in issue were the public participation aspects of the EIA Directive which in part sought to give effect to the Convention;
Lord Sales’ analysis that the Aarhus Convention adds little to the debate in Finch is hard to argue with.
But there is a further point. This claim was brought by a Sarah Finch, a Surrey resident. The claim fell within the scope of the Aarhus Convention and thus she was able to avail herself of the costs protections this provides. Given there were three defendants/respondents: Surrey County Council, the developer and the Secretary of State and that the claim failed in the courts below it seems unlikely that litigation such as this would have been possible without Aarhus costs protection.

Anyway, enough of this I am off to ponder paras. 120 – 124 of the judgment and consider which side of the line any particular process falls on in terms of downstream effects and causation … all the vast amount of future litigation this will give rise to … Good news for lawyers but maybe not for those who actually want to develop stuff …

This blog post was written by James Maurici KC.

----------------

Authors of the Aarhus blogs

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.