R (on the application of Finch on behalf of the Weald Action Group) (Appellant) v Surrey County Council and others (Respondents)

LORD LEGGATT (with whom Lord Kitchin and Lady Rose agree):

1. Introduction

1. Anyone interested in the future of our planet is aware by now of the impact on its climate of burning fossil fuels - chiefly oil, coal and gas. When fossil fuels are burnt, they release carbon dioxide and other “greenhouse gases” - so called because they act like a greenhouse in the earth’s atmosphere, trapping the sun’s heat and causing global surface temperatures to rise. According to the United Nations Environment Programme (“UNEP”) Production Gap Report 2023, p 3, close to 90% of global carbon dioxide emissions stem from burning fossil fuels.

1. The whole purpose of extracting fossil fuels is to make hydrocarbons available for combustion. It can therefore be said with virtual certainty that, once oil has been extracted from the ground, the carbon contained within it will sooner or later be released into the atmosphere as carbon dioxide and so will contribute to global warming. This is true even if only the net increase in greenhouse gas emissions is considered. Leaving oil in the ground in one place does not result in a corresponding increase in production elsewhere: see UNEP's 2019 Production Gap Report, p 50, which reported, based on studies using elasticities of supply and demand from the economics literature, that each barrel of oil left undeveloped in one region will lead to 0.2 to 0.6 barrels not consumed globally over the longer term.

1. Before a developer is allowed to proceed with a project which is likely to have significant effects on the environment, legislation in the United Kingdom and many other countries requires an environmental impact assessment (“EIA”) to be carried out. The object of an EIA is to ensure that the environmental impact of a project is exposed to public debate and considered in the decision-making process. The legislation does not prevent the competent authority from giving development consent for projects which will cause significant harm to the environment. But it aims to ensure that, if such consent is given, it is given with full knowledge of the environmental cost.

1. This appeal raises a question about whether the greenhouse gas (“GHG”) emissions which will occur when oil extracted from an oil well, after being refined, is burnt as fuel must be included in the EIA required before development consent may be given for the extraction of the oil. The answer to this question depends on whether, for the purpose of the applicable legislation, the effect on climate measured by the GHG emissions that will occur upon combustion of the oil is an effect of the project on climate.

1. The competent authority, Surrey County Council, initially considered that the EIA for a project to extract oil for commercial purposes at a well site in Surrey should include an assessment of the combustion emissions from the oil to be produced. The council advised the developer that its environmental statement describing the likely significant effects of the project on the environment should assess the effect of the project on climate and “should consider, in particular, the global warming potential of the oil and gas that would be produced by the proposed well site.” But later the council changed its mind. It accepted as sufficient an environmental statement which assessed only direct releases of greenhouse gases at the project site over the lifetime of the project and contained no assessment of the impact on climate of the combustion of the oil. In consequence, no information about the combustion emissions was made available to the public or considered by the council before it granted development consent for the project.

1. The issue which this court must now decide is whether it was lawful for the council to restrict the scope of the EIA in this way. In defence of the council’s decision to do so, two alternative arguments are made. First, it is said that as a matter of law the combustion emissions could not be regarded as environmental effects of the project within the meaning of the legislation. So the council was right to omit them from the EIA. Alternatively, it is said that whether the combustion emissions were effects of the project was a matter of evaluative judgment for the council. Hence the council’s decision not to assess the combustion emissions can be challenged only on the limited grounds on which a court can review an exercise of discretion by a public authority. Here, it is argued, there is no proper ground for such a challenge.

1. I am not persuaded by either argument. It is agreed that the project under consideration involves the extraction of oil for commercial purposes for a period estimated at 20 years in quantities sufficient to make an EIA mandatory. It is also agreed that it is not merely likely, but inevitable, that the oil extracted will be sent to refineries and that the refined oil will eventually undergo combustion, which will produce GHG emissions. It is not disputed that these emissions, which can easily be quantified, will have a significant impact on climate. The only issue is whether the combustion emissions are effects of the project at all. It seems to me plain that they are.

1. Before explaining my reasons for so concluding, I must identify the applicable legislative provisions and say a little more about the factual and procedural background to this appeal.

1. The legislation

1. The legislation which the council had to apply was contained in the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017/571). I will refer to these as “the 2017 Regulations”. The 2017 Regulations are one of a number of UK statutory instruments designed to implement Directive 2011/92/EU of the European Parliament and of the Council, as amended by Directive 2014/52/EU. I will refer to Directive 2011/92/EU, as amended, as “the EIA Directive” and to Directive 2014/52/EU as “the 2014 Directive”.

1. We are concerned with the law as it stood in September 2019 when the council’s decision to grant development consent for the project was taken. This was before the United Kingdom left the European Union. It is not suggested that the analysis of this case is affected by any changes made to English law as a result of Brexit.

1. The 2017 Regulations are to be interpreted in line with the EIA Directive which they were intended to implement. In these circumstances it is appropriate to focus directly on the provisions of the EIA Directive: see eg R (Friends of the Earth Ltd) v Secretary of State for Transport [2020] UKSC 52; [2021] PTSR 190, para 136.

The EIA Directive

1. The principle underpinning the EIA Directive, as stated in recital (7), is that:

   “Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out.”

   “Development consent” is defined in article 1 as “the decision of the competent authority or authorities which entitles the developer to proceed with the project.” The term “project” is widely defined and specifically includes “the extraction of mineral resources.”

1. The general obligation imposed by the EIA Directive is set out in article 2(1):

   “Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in article 4.”

1. Certain projects - such as oil refineries, power stations and waste disposal installations among others - are regarded as inherently likely to have significant effects on the environment and therefore automatically require development consent and an EIA: see article 4(1). These projects are listed in Annex I. The list includes, at item 14:

   “Extraction of petroleum and natural gas for commercial purposes where the amount extracted exceeds 500 tonnes/day in the case of petroleum and 500 000 cubic metres/day in the case of gas.”

   It is agreed that the project here falls within this description. Development consent for the project and an EIA were therefore required.

1. As defined in article 1(2)(g) of the EIA Directive, “environmental impact assessment” is a process consisting of: (i) the preparation of an EIA report by the developer; (ii) the carrying out of consultations, including public consultation; (iii) the examination by the competent authority of the information received; (iv) a reasoned conclusion by the competent authority on the significant effects of the project on the environment, taking into account the results of its examination; and (v) the integration of this reasoned conclusion into any decisions taken by the competent authority.

1. Article 3(1) requires the EIA to “identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project” on various factors, which include “climate.” Article 5(1) specifies information which the developer must provide in an EIA report where an EIA is required. This information includes “a description of the likely significant effects of the project on the environment” and any additional information specified in Annex IV relevant to the particular project or type of project in question: see article 5(1)(b) and (f). The information specified in Annex IV includes, at para 5, a “description of the likely significant effects of the project on the environment resulting from, inter alia”:

   “…

   1. the impact of the project on climate (for example the nature and magnitude of greenhouse gas emissions) …”

1. Annex IV, para 5, further stipulates:

   “The description of the likely significant effects on the factors specified in article 3(1) should cover the direct effects and any indirect, secondary, cumulative, transboundary, short-term, medium-term and long-term, permanent and temporary, positive and negative effects of the project.”

Public Participation

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

1. 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.”

1. 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.”

1. The rationale underpinning these public participation requirements is expressed in recital (16) to the EIA Directive:

   “Effective public participation in the taking of decisions enables the public to express, and the decision-maker to take account of, opinions and concerns which may be relevant to those decisions, thereby increasing the accountability and transparency of the decision-making process and contributing to public awareness of environmental issues and support for the decisions taken.”

Two important ideas are included within this rationale. First, public participation is necessary to increase the democratic legitimacy of decisions which affect the environment. Second, the public participation requirements serve an important educational function, contributing to public awareness of environmental issues. Guaranteeing rights of public participation in decision-making and promoting education of the public in environmental matters does not guarantee that greater priority will be given to protecting the environment. But the assumption is that it is likely to have that result, or at least that it is a prerequisite. You can only care about what you know about.

The 2014 amendments

1. As well as the provisions implementing the Aarhus Convention, it is relevant to note amendments to the EIA Directive made by the 2014 Directive. These included the incorporation in Annex IV of climate and GHG emissions as specific factors which must be addressed in the description of the likely significant effects of the project on the environment (see para 16 above).

1. The rationale for these amendments is explained in recitals (7) and (13) to the 2014 Directive. Recital (7) stated:

   “Over the last decade, environmental issues, such as … climate change … have become more important in policy making. They should therefore also constitute important elements in assessment and decision-making processes.”

   Recital (13) stated:

   “Climate change will continue to cause damage to the environment and compromise economic development. In this regard, it is appropriate to assess the impact of projects on climate (for example greenhouse gas emissions) and their vulnerability to climate change.”

1. Further background to the amendments appears from a proposal to amend the EIA Directive sent by the European Commission to the Council on 26 October 2012, accompanied by an impact assessment, and from Guidance on Integrating Climate Change and Biodiversity into Environmental Impact Assessment published by the Commission in 2013 (“the 2013 Guidance”) in anticipation of the relevant amendments being made. These documents explain that, although the EIA Directive had previously included “climate” as a factor specified in article 3(1), experience had shown that climate change issues were not being adequately identified and assessed. One of the aims of the 2014 Directive was to change this, including by the incorporation of an explicit requirement to consider GHG emissions. The aim of the 2013 Guidance was to help Member States improve the way in which climate change (and biodiversity) issues were integrated into the EIA process.

The 2017 Regulations

1. The EIA Directive has been transposed into English law through a series of statutory instruments applicable to different types of project for which, under the EIA Directive, development consent and an EIA are required. There are separate statutory regimes for - to give just a few examples - projects related to forestry, harbour works, marine works, pipeline works, offshore petroleum works and nuclear reactor decommissioning works.

1. The regulations applicable to projects for offshore petroleum production in an amount exceeding 500 tonnes per day (and therefore falling within item 14 of Annex I to the EIA Directive) are the Offshore Petroleum Production and Pipe-lines (Assessment of Environmental Effects) Regulations 1999 (SI 1999/360). Under those regulations, the authority responsible for deciding whether to grant development consent and for carrying out an EIA when required is the Secretary of State.

1. In the case of projects for onshore petroleum production (and many other types of project), the United Kingdom has chosen to implement the EIA Directive through the town and country planning regime, by way of the 2017 Regulations. The responsibility for deciding whether to grant development consent and for carrying out an EIA when required is conferred by the 2017 Regulations on the “relevant planning authority” which is, broadly speaking, the body responsible for determining an application for planning permission for the development. Where the development involves the extraction of oil or other minerals, this is the county council for the area in which it is proposed that the extraction will take place.

1. I pause to note that the EIA Directive did not oblige the UK to adopt this approach. Article 2(2) of the EIA Directive states that the EIA “may be integrated into the existing procedures for development consent to projects in the Member States” or into “other procedures or into procedures to be established to comply with the aims of [the] Directive.” There is nothing in the EIA Directive which prevented the UK, if it thought necessary or fit, from establishing a national regime for decisions whether to give development consent for projects for onshore oil production - just as the UK has done in relation to projects for offshore oil production. I will return to this point when addressing a suggestion that, because the public authority responsible for granting development consent here is a county council, the EIA process cannot require an assessment of the combustion emissions, as such effects on climate are properly considered at a national level. A short answer is that this looks at the matter the wrong way round. If (which I do not accept) a county council cannot carry out EIAs for projects for onshore petroleum production that are adequate to comply with the aims of the EIA Directive, then a different procedure should be established - if necessary, at a national level - that will achieve such compliance.

1. Regulation 3 of the 2017 Regulations enacts the basic rule that:

   “The relevant planning authority, the Secretary of State or an inspector must not grant planning permission or subsequent consent for EIA development, unless an EIA has been carried out in respect of that development.”

   The definition of “EIA development” includes (subject to exemptions not relevant in this case) development of a description mentioned in Schedule 1 to the 2017 Regulations, which reproduces Annex I to the EIA Directive. It therefore encompasses the project for the extraction of oil which is the subject of this case.

1. The 2017 Regulations contain provisions which mirror the provisions of the EIA Directive referred to at paras 14-17 above. The EIA report which under article 5(1) of the EIA Directive the developer must prepare is referred to in the 2017 Regulations as an “environmental statement.”

1. Factual background

The project

1. The relevant “EIA development” in this case is a project to expand oil production from a well site at Horse Hill near Horley in Surrey. The developer, a company called Horse Hill Developments Ltd, applied to Surrey County Council, as the relevant mineral planning authority, for planning permission to retain and extend the existing well site (comprising two wells) and drill four new wells, and to extract hydrocarbons from the six wells for commercial production. The plan was to carry out the project over 25 years in six phases, starting with construction works to modify the well site, drill the new wells and install facilities for exporting crude oil from the site, and ending with decommissioning and site restoration. The relevant phase is phase 4, which encompasses the extraction of oil from the wells over 20 years. It is estimated that over this period the total quantity of oil produced could be of the order of 3.3 million tonnes.

The scope of the environmental statement

1. The 2017 Regulations (in regulation 15, which implements article 5(2) of the EIA Directive) allow the developer, before making an application for planning permission for EIA development, to ask the relevant planning authority for a “scoping opinion” on the information to be provided in the environmental statement. There is nothing which prevents the planning authority from deciding to grant planning permission if the environmental statement does not conform to the scoping opinion. But there is an expectation that, where there is a scoping opinion, the environmental statement will be based on it. This is explicit in regulation 18(4), giving effect to article 5(1), which states that, where a scoping opinion has been issued, the environmental statement “must … be based” on that opinion.

1. In this case the developer requested, and the council issued, a scoping opinion. The scoping opinion said (in para 3.13) that “the indirect effects associated with the production and sale of fossil fuels which would likely be used in the generation of heat or power, consequently giving rise to carbon emissions, cannot be dismissed as insignificant.” This led (in para 3.14) to the following recommendation:

   “Given the nature of the proposed development, which is concerned with the production of fossil fuels, the use of which will result in the introduction of additional greenhouse gases into the atmosphere, it is recommended that the submitted EIA include an assessment of the effect of the scheme on the climate. That assessment should consider, in particular, the global warming potential of the oil and gas that would be produced by the proposed well site.”

   (emphasis added)

1. The developer did not comply with this recommendation. The environmental statement submitted by the developer contained no information about the global warming potential of the oil that would be produced by the proposed well site. The section dealing with “Greenhouse Gas Emissions and The Climate” stated that:

   “The scope of the assessment is confined to the direct releases of greenhouse gases from within the well site boundary resulting from the site’s construction, production, decommissioning and subsequent restoration over the lifetime of the proposed development.”

1. The decision to restrict the scope of the assessment in this way was explained (in paras 121 and 122 of the environmental statement) on these grounds:

   1. … The essential character of the proposed development is the extraction and production of hydrocarbons and does not extend to their subsequent use by facilities and process beyond the planning application boundary and outwith the control of the site operators.

   1. The assessment methodology pays regard to national planning policy and guidance that establishes that decision- makers should ‘focus on whether the development is an acceptable use of land, rather than on control of processes or emissions where these are subject to approval under pollution control regimes’. These non-planning regimes regulate hydrocarbon development and other downstream industrial processes and decision-makers can assume that these regimes will operate effectively to avoid or mitigate the scope for material environmental harm.”

1. As I read these paragraphs (in agreement with Moylan LJ at para 116 of the Court of Appeal judgment), the developer was giving two, or possibly three, reasons for confining the scope of the assessment to “the direct releases of greenhouse gases from within the well site boundary” contrary to the council’s scoping opinion. The first reason (or pair of reasons) was that it was unnecessary to assess GHG emissions resulting from the subsequent processing and use of the hydrocarbons beyond the well site boundary because such processes and use (a) were not part of the proposed development and (b) were “outwith the control of the site operators.” The other reason given (in para 122) was that the planning authority should not concern itself with GHG emissions that will occur “downstream” when the oil produced from the wells is processed and used because such processes are regulated by other, non-planning regimes, and the planning authority can assume that these regimes will operate effectively to avoid or mitigate the scope for material environmental harm.

The council’s decision

1. The council accepted the developer’s explanation for not preparing an environmental statement which complied with the scoping opinion. The environmental statement was reviewed by a council officer, Dr Jessica Salder. Her review noted (at para 5.15) that the assessment of the impact of the proposed development on GHG emissions and climate change was limited to “the direct greenhouse gas emissions” of the development and operation of the proposed well site and that “[t]he potential contribution of the hydrocarbons that would be produced over the lifetime of the well site is not covered.” The review also noted that the reasons for excluding those emissions were set out in paras 121 and 122 of the environmental statement (quoted above) and said that the council accepted the justification given there for excluding consideration of the global warming potential of the produced hydrocarbons from the scope of the EIA process.

1. At a meeting on 11 September 2019, the council’s planning and regulatory committee decided that planning permission should be granted for the project. The committee had sight of an officer’s report which included consideration of the effect of the development on climate. But because of the council’s acceptance of the approach taken in the developer’s environmental statement, this report ignored the combustion emissions. This limitation in the scope of the EIA was recognised, even if only obliquely, in the conclusion (at para 97 of the report) that:

   “the proposed development would not give rise to significant impacts on the climate as a consequence of the emissions of greenhouse gases directly attributable to the implementation and operation of the scheme.” (emphasis added)

   The report said nothing about impacts on the climate as a consequence of GHG emissions indirectly attributable to the operation of the well site, as no assessment had been made of those indirect effects of the project.

1. Classifying GHG emissions

1. It is convenient at this stage to introduce some terminology which, although not used in the EIA Directive and 2017 Regulations, has become widely used in reporting GHG emissions and was used in the judgments of the Court of Appeal. The terminology derives from the Greenhouse Gas Protocol Corporate Accounting and Reporting Standard (the “GHG Protocol”). This is a document published by the Greenhouse Gas Protocol Initiative, an international initiative involving businesses, NGOs, governments and others. Its aim is to develop internationally accepted GHG accounting and reporting standards for business and to promote their broad adoption.

1. The GHG Protocol classifies GHG emissions using three categories, labelled “scope 1”, “scope 2” and “scope 3”. Scope 1 emissions are defined as direct GHG emissions that occur from sources that are owned or controlled by an entity. Scope 2 emissions are a special category of indirect emissions. This category consists of GHG emissions from the generation of purchased electricity consumed by an entity. Scope 2 emissions occur at the facility where the electricity is generated. Scope 3 encompasses all other indirect emissions. Scope 3 emissions are consequences of the activities of the entity but (like scope 2 emissions) occur from sources not owned or controlled by the entity. Some examples of scope 3 activities given in the GHG Protocol (at p 25) are extraction and production of purchased materials, transportation of sold products, and use of sold products and services.

1. In November 2021 the International Financial Reporting Standards (“IFRS”) Foundation announced the formation of the International Sustainability Standards Board. The Board’s aim is to develop international standards for the disclosure of information related to sustainability. Sustainability is defined very broadly and includes direct and indirect effects of the entity’s business on the environment. So far two standards have been issued: IFRS S1 and IFRS S2. IFRS S1 establishes general requirements for disclosure of sustainability-related financial information. IFRS S2 is concerned with disclosure of climate-related information. Among other information, IFRS S2 requires entities to disclose their absolute gross GHG emissions during the reporting period, classified as scope 1, scope 2 and scope 3 GHG emissions. Scope 3 GHG emissions are themselves required to be classified in 15 categories derived from the GHG Protocol. These categories include “downstream transportation and distribution”, “processing of sold products” and “use of sold products”.

1. The UK Government is currently consulting on whether to endorse IFRS S2 for use in the UK and, in particular, whether to introduce reporting requirements for UK companies which include an obligation to report their scope 3 GHG emissions: see “Scope 3 Emissions in the UK Reporting Landscape: A Call for Evidence” (October 2023).

1. Using the taxonomy adopted in the GHG Protocol Standard and IFRS S2, the council’s decision to confine the scope of the assessment of GHG emissions to “the direct releases of greenhouse gases from within the well site boundary” (see para 37 above) meant that only scope 1 GHG emissions were assessed. That is, only direct GHG emissions from sources within the control of the developer / site operator were included in the EIA. No indirect GHG emissions resulting from the project but occurring from sources outside the control of the developer / site operator were assessed. As it happens, there were no relevant scope 2 GHG emissions. This is because the project was intended to generate its own electricity. There was therefore no plan to consume any purchased electricity generated at facilities elsewhere. So the GHG emissions from the generation of electricity used in the operation of the well site would all be scope 1 GHG emissions. The combustion emissions which are the centre of controversy here are scope 3 GHG emissions, as they are indirect GHG emissions not included in scope 2. Under IFRS S2 they fall within scope 3, category (11): emissions from the use of sold products.

1. These proceedings

The claim

1. The claimant, who lives near the site and represents an association called the Weald Action Group, has brought this claim for judicial review of the council’s decision to grant planning permission for the project. Her primary ground of challenge (and the only one still relevant on this appeal) is that the council did not comply with the obligations imposed by the EIA Directive and the 2017 Regulations because, in carrying out the EIA required for the project, it failed to assess the combustion emissions that will result from the oil to be produced. There are three defendants to the claim, all of whom oppose it. They are the council, the developer and the Secretary of State for Levelling Up, Housing and Communities.

The High Court decision

1. In the High Court Holgate J dismissed the claim for reasons given in a characteristically clear and comprehensive judgment: [2020] EWHC 3566 (Admin); [2021] PTSR 1160. The judge found, at para 69, that it is impossible to say where the oil produced would be refined or used, and whether this would be in the United Kingdom or abroad. But the judge also made this important finding, at para 100, which is an agreed fact on this appeal:

   “… it is inevitable that oil produced from the site will be refined and, as an end product, will eventually undergo combustion, and that that combustion will produce GHG emissions.” (emphasis added)

1. Even so, the judge concluded that assessment of the combustion emissions was, as a matter of law, incapable of falling within the scope of the EIA required by the 2017 Regulations: see para 126. Alternatively, if that was wrong and it was legally possible to take the view that the combustion emissions fell within the scope of the required EIA, the judge thought it impossible to say that the council’s opinion that the combustion emissions were not indirect effects of the proposed development was irrational or otherwise unlawful: see paras 127, 132.

Decision of the Court of Appeal

1. The Court of Appeal, by a majority, affirmed the judge’s decision, on the basis of his alternative reasoning: [2022] EWCA Civ 187; [2022] PTSR 958. The majority (Sir Keith Lindblom, Senior President of Tribunals, and Lewison LJ) did not agree with the judge that, as a matter of law, the combustion emissions were incapable of being regarded as effects on climate requiring assessment in the EIA. In their view, whether the combustion emissions are indirect effects of the extraction of the oil which therefore had to be assessed depends on whether there was a “sufficient causal connection” between the two, which they saw as a matter of fact and evaluative judgment for the council: see paras 43, 57, 60, 63, 141. The Senior President was satisfied that, in the circumstances of this case, the council had a reasonable and lawful basis for excluding the combustion emissions from the EIA: paras 60-66. Lewison LJ was more doubtful but ultimately concluded, “not without hesitation”, that the reasons given by the council for its decision “just about pass muster”: para 149.

1. Moylan LJ dissented. He agreed with the majority that whether the combustion emissions needed to be assessed was a matter to be determined by the council. But he considered that cogent reasons would be required to exclude those GHG emissions from assessment and that the reasons given by the council were legally flawed: paras 129-130.

This appeal

1. On this further appeal by the claimant, the parties’ positions are as follows:

   1. The claimant contends that, on the proper interpretation of the legislation, the “effects of the project” on climate which the council needed to assess as part of the EIA included the combustion emissions.

   1. Two of the defendants - the council and the Secretary of State - invite this court to endorse the analysis of the majority of the Court of Appeal (and alternative approach of the judge) that the council was entitled to decide, as a matter of evaluative judgment, that the combustion emissions were not “effects of the project” on climate.

   1. The developer submits (as its primary position) that the judge was right to hold that the combustion emissions cannot as a matter of law be regarded as “effects of the project” on climate.

1. With the court’s permission, four interveners have also made written submissions. I have found particularly helpful submissions made by the Office for Environmental Protection. This is a public body established under section 22 of the Environment Act 2021 and sponsored by the Department for the Environment, Food and Rural Affairs. Its principal objective is to contribute to environmental protection and the improvement of the natural environment.

1. Two of the interveners, Friends of the Earth Ltd and Greenpeace UK, support the claimant’s case. Another, West Cumbria Mining Ltd, supports the approach of the majority of the Court of Appeal. The submissions made by the Office for Environmental Protection do not take sides between the parties but explain the reasons for its concern that the decisions of the lower courts, if upheld, “could have an adverse effect on sound environmental decision making and hence on environmental protection and the improvement of the natural environment.”

1. The issue

1. The overall issue in the appeal is whether, under the EIA Directive and the 2017 Regulations, it was lawful for the council not to include the combustion emissions in the EIA for the proposed project.

1. The council could not lawfully grant planning permission for the project unless an EIA had been carried out which complied with the obligation to “identify, describe and assess in an appropriate manner … the direct and indirect significant effects” of the project on (among other factors) “climate”: see regulation 4(2), reflecting article 3(1) of the EIA Directive. If the significant effects of the project on climate include the combustion emissions, the council was therefore obliged to assess them as part of the EIA and its failure to do so renders the decision to grant planning permission unlawful. On the other hand, if (as the judge held) the combustion emissions were incapable as a matter of law of being regarded as “effects of the project” on climate within the meaning of the legislation, then the council was right not to assess them and its decision to grant planning permission was lawful. Its decision was also lawful if (as the majority of the Court of Appeal held) the question whether the combustion emissions are “effects of the project” on climate within the meaning of the legislation was a matter of evaluative judgment for the council and the council’s reasons for leaving the combustion emissions out of account were lawful.

1. The meaning and application of legislation

1. The approach taken by the Court of Appeal raises a question about the respective roles of the competent authority and the court when a dispute arises about whether the authority has correctly applied legislation to the facts of a particular case.

1. Interpreting the law, by establishing the meaning and legal effect of legislation, is the court’s role. If a decision-making authority bases its decision on an interpretation of legislation which the court concludes was mistaken, then the authority makes an error of law and its decision is unlawful.

1. Interpreting a legislative provision requires the court to identify, from the language and purpose of the legislation, the criteria to be applied in deciding whether the facts of any individual case fall within its scope. These criteria may be so precise that, when applied to the facts of a given case, they rationally yield only one answer. But sometimes, as Lord Mustill pointed out in R v Monopolies and Mergers Commission, Ex p South Yorkshire Transport Ltd [1993] 1 WLR 23, 32, the criteria are sufficiently imprecise that there is room for different decision-makers, each acting rationally, to reach different answers. In such a case the court will not interfere with the decision taken unless it is “irrational” in the sense either that it is outside the range of reasonable decisions open to the decision-maker or that there is a demonstrable flaw in the reasoning which led to the decision. Examples of such a flaw would be that significant reliance was placed on an irrelevant consideration, or that there was no evidence to support an important step in the reasoning, or that the reasoning involved a serious logical or methodological error: see eg R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin); [2019] 1 WLR 1649, para 98.

1. The question in South Yorkshire Transport was whether, for the purpose of particular competition legislation, an area of South Yorkshire in which a transport company was providing bus services constituted “a substantial part of the United Kingdom.” The House of Lords held that, even after eliminating inappropriate senses of the term “substantial”, the meaning was broad enough to call for an exercise of judgment and that the conclusion arrived at by the decision-maker was well within the “permissible field of judgment.”

1. The term “substantial” is intrinsically vague because, in the absence of some further, more precise criterion, there will be cases in which the question whether the term applies has no answer on which reasonable people who understand the meaning of the term could all be expected to agree. The same is true of the term “significant” which is used in article 3(1) and other provisions of the EIA Directive. Deciding whether an effect of a project on the environment is “significant” clearly requires a value judgment and carries the potential for cases to arise in which different decision-makers may legitimately reach different conclusions without it being possible to say that any of them has made an error in interpreting or applying the term.

1. The concept of “the effects of a project” on the environment is not - or at least not obviously - vague in this way. One might think that whether a particular environmental impact is or is not an effect of the project is a question which, in principle, admits of only one answer. In my view, in the great majority of cases that impression is indeed correct. I think it is true here. But it will be necessary to consider the contrary view taken by the Court of Appeal that whether something is an “effect of the project” is a matter of degree which requires the decision-making authority to evaluate whether there is a “sufficient causal connection” between the project and the putative effect. The concept of a “sufficient causal connection” is intrinsically vague. If no more precise criterion can be identified, it would leave a wide range of cases in which the question whether a particular environmental impact is or is not an “effect of the project” has no single right or wrong answer.

1. As an initial comment, this would be a very unsatisfactory state of affairs. It would mean that in cases of the present kind there would be no consistency, or means of ensuring consistency, between decisions made by different planning authorities when faced with similar issues, or even between decisions made by the same authority on different occasions in relation to similar projects. That would be all the more regrettable when issues relating to climate change and the extent to which disclosure of information about GHG emissions should be required are becoming more and more salient in policy-making and public debate. To treat inconsistent approaches to questions of whether and when direct or indirect GHG emissions should be included in EIAs as equally valid would be a form of arbitrary administration. The fact that the interpretation of the EIA Directive favoured by the Court of Appeal would have such an unreasonable result is itself a good reason to reject it.

1. Interpreting the EIA Directive

1. In interpreting the EIA Directive, certain core principles are not in dispute. To determine what is meant by the “direct and indirect … effects of a project”, it is necessary to examine the language and in particular the purpose of the EIA Directive: R v North Yorkshire County Council, Ex p Brown [2000] 1 AC 397, 401. The Court of Justice of the European Union (“CJEU”) has repeatedly emphasised that the EIA Directive is wide in scope and its purpose very broad: see eg Aannemersbedrijf P K Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland (Case C-72/95) [1997] All ER (EC) 134, para 31; World Wildlife Fund (WWF) v Autonome Provinz Bozen (Case C-435/97) [1999] ECR I-5613, para 40; Abraham v Wallonia (Case C-2/07) [2008] Env LR 32, paras 32 and 42. Concisely stated, that purpose is to ensure that decisions whether to give development consent for projects which may affect the environment are made on the basis of full information: R v North Yorkshire County Council, Ex p Brown [2000] 1 AC 397, 404; Berkeley v Secretary of State for the Environment [2001] 2 AC 603, 615.

1. It is also important to keep in mind that the legislation is essentially procedural in nature. It is not concerned with the substance of the decision whether to grant development consent but with how the decision is taken. Thus, as the House of Lords held in Berkeley, it is no answer to a challenge based on failure to carry out an EIA that complies with the EIA Directive to say that complying with the EIA Directive would not have affected the decision. It is essential to the validity of the decision that, before it is made, there has been a systematic and comprehensive assessment of the likely significant effects of the project on the environment in accordance with the EIA Directive. As well explained by one writer on the subject:

   “EIA is not a procedure for preventing actions with significant environmental impacts from being implemented, although in certain circumstances this could be the appropriate outcome of the process. Rather the intention is that actions are authorised in the full knowledge of their environmental consequences.”

   See Christopher Wood, Environmental Impact Assessment: A Comparative Review, 2nd ed (2002), p 3.

1. As noted earlier, public participation is also integral to the process of assessment. This was also emphasised in Berkeley, where Lord Hoffmann stated,at p 615:

   “The directly enforceable right of the citizen which is accorded by the [EIA] Directive is not merely a right to a fully informed decision on the substantive issue. It must have been adopted on an appropriate basis and that requires the inclusive and democratic procedure prescribed by the Directive in which the public, however misguided or wrongheaded its views may be, is given an opportunity to express its opinion on the environmental issues.”

1. With these principles in mind, I turn to the key question of what, on the proper interpretation of the EIA Directive, is meant by the “direct and indirect … effects of a project” on the factors specified in article 3(1) - and, in particular, on “climate” - which the EIA is required to identify, describe and assess.

1. What are “effects of a project”?

1. What are or are not “effects of a project” is, to state the obvious, a question of causation. An effect is the obverse of a cause.

Causation in fact

1. Whether one event or state of affairs (Y) is an effect of another event or state of affairs (X) - or, to say the same thing the other way round, whether X is a cause of Y - is in the first place a question of fact. To determine whether two events are causally connected, we apply scientific knowledge, understanding of human behaviour and other knowledge about the world. Such knowledge may of course increase as new research is undertaken and new discoveries are made. Understanding of climate change is a good illustration. Until quite recently it was uncertain and controversial whether global temperatures have been rising as a result of human activities. But there is now overwhelming scientific proof of this phenomenon demonstrating the past, present and likely future effects on climate of, among other human activities, burning fossil fuels to generate energy.

Causation in law

1. Establishing that, as a matter of fact, there is a causal relationship between events X and Y, does not by itself answer the question whether, as a matter of law, X is to be regarded as a cause of Y (and Y as an effect of X). To answer that question, it is necessary to understand the purpose for which the question is being asked: see eg Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22, 29-31.

1. Depending on the context, various tests of causation may be applied, some more demanding than others. A test often used at least as a minimum requirement is whether X is a necessary condition for the occurrence of Y. This is known by lawyers as the “but for” test because one simple way of expressing it is to ask: would event Y have occurred but for the occurrence of event X? The “but for” test is generally seen as a weak test of causation because, in any given situation, many events (or states of affairs) will satisfy the “but for” test which would not usually be regarded as causes of the event under consideration: see eg Financial Conduct Authority v Arch Insurance (UK) Ltd [2021] UKSC 1; [2021] AC 649, para 181.

1. The strongest possible test of causation, which is seldom satisfied when questions of causation arise in law, requires the occurrence of event X to be both a necessary and sufficient condition for the occurrence of Y. If X is a sufficient cause of Y, then every time X happens Y will always follow. This is the kind of unbreakable connection that exists, for example, where laws of physics, such as Newton’s laws of motion, operate.

1. An example of a test not as strong as this but much stronger than the “but for” test is the interpretation placed on pollution control legislation in the Environment Agency case mentioned earlier. The legislation made it an offence to cause polluting matter to enter controlled waters. Diesel oil stored in a tank in the defendant’s yard had overflowed into a river but only because an outlet tap without a lock had been turned on by a person unknown. The question was whether the defendant had caused the oil to enter the river. The House of Lords held that the criterion for identifying which intervening acts and events negative causal connection for this purpose was whether the intervening act or event was a matter of ordinary occurrence or was something extraordinary. If, as on the facts of that case, the third party act which was the immediate cause of the pollution was a matter of ordinary occurrence, it should not be regarded as negativing the causal effect of the defendant’s acts. The proper conclusion would therefore be that the defendant had caused the polluting matter to enter the river.

1. A similar test applies in insurance law where, unless the insurance policy otherwise provides, the insurer is liable only for losses “proximately” caused by a peril insured against. As explained in Financial Conduct Authority v Arch Insurance, paras 164-168, the term “proximate” means “real or efficient” and whether the occurrence of an insured peril was the proximate (or efficient) cause of the loss involves making a judgment as to whether it made the loss inevitable - if not, which could seldom if ever be said, in all conceivable circumstances - then in the ordinary course of events. For this purpose, human actions are not generally regarded as negativing causal connection, provided at least that those actions were not wholly unreasonable or erratic.

Predicting likely effects

1. Typically, when questions of causation arise in law the inquiry involves looking backwards to determine whether one past event caused another past event. In determining the required scope of an EIA, however, the inquiry is forward-looking. The question is: on the assumption that the project goes ahead, what possible future effects on the environment will constitute “effects of the project” which (if significant) must therefore be assessed? The EIA Directive answers that question by imposing the test of whether the effect is “likely”. Thus, article 5(1)(b) requires the information provided by the developer to include “a description of the likely significant effects of the project on the environment” (emphasis added) and Annex IV further specifies what this obligation involves.

1. The term “likely” can bear more than one meaning. It can mean “more probable than not”, or it may connote some other (lesser or greater) degree of probability. A guide provided by the Intergovernmental Panel on Climate Change, quoted with approval by the European Commission in its 2013 Guidance at p 40, equates the term “likely” with a probability of between 66% and 100%. Arguably, this is too strict a standard. But, as I will soon discuss, there is no need to express any view on this question to decide this case.

1. Whatever the precise meaning of the term, to determine that a potential effect is “likely” requires evidence on which to base such a determination. If evidence is lacking so that a possible future occurrence is a matter of speculation or conjecture, then a rational person would not feel able to judge that it is “likely”. Such agnosticism is not the same as judging the event to be unlikely. It reflects a belief that there is too little knowledge on which to base a judgment.

1. The need for sufficient evidence on which to base an assessment is not spelt out as a requirement in the EIA Directive. But it can be deduced from the description and purpose of the EIA procedure. As set out in article 1(2)(g), stage (iv) of that procedure - which follows (i) the preparation of the environmental statement by the developer, (ii) the carrying out of consultations, and (iii) the examination by the competent authority of the information received - is:

   “[a] reasoned conclusion by the competent authority on the significant effects of the project on the environment, taking into account the results of [its] examination;”

1. The initial, information gathering stages of the process, including the preparation of the environmental statement, are thus directed towards the ability to reach a reasoned conclusion on the significant effects of the project on the environment. This is confirmed in article 5(1), which provides that the environmental statement shall “include the information that may reasonably be required for reaching a reasoned conclusion on the significant effects of the project on the environment, taking into account current knowledge and methods of assessment.” Similarly, article 5(3)(c) provides that, “where necessary, the competent authority shall seek from the developer supplementary information, in accordance with Annex IV, which is directly relevant to reaching [a] reasoned conclusion on the significant effects of the project on the environment.”

1. Implicit in these provisions, and in the aims of the EIA Directive, is the criterion that material should be included in the environmental statement and taken into account in the procedure only if it is information on which a reasoned conclusion could properly be based. Conjecture and speculation have no place in the EIA process. Thus, if there is insufficient evidence available to found a reasoned conclusion that a possible environmental effect is “likely”, there is no requirement to identify, describe and try to assess this putative effect. This criterion must also govern, where a possible effect is regarded as “likely”, the nature and extent of the assessment of the effect.

1. There is here an area of evaluative judgment involved in determining the scope of an EIA. Judging whether a possible effect of a project is likely and capable of assessment may, depending on the circumstances, be a matter on which different decision-makers, each acting rationally, may take different views.

Causation in this case

1. In this case there is no uncertainty about the relevant facts. It is known with certainty that the extraction of oil at the proposed well site in Surrey - which is the activity giving rise to the requirement to carry out an EIA - would initiate a causal chain that would lead to the combustion of the oil and release of greenhouse gases into the atmosphere. It is not necessary to consider what is meant by “likely” because it is an agreed fact that, if the project goes ahead, this chain of events and the resulting effects on climate are not merely likely but inevitable.

1. Expressed in terms of necessary and sufficient conditions, this is not simply a case in which the “but for” test is satisfied in that, but for the extraction of the oil, the oil would stay in the ground and so would not be burnt as fuel. On the agreed facts, the extraction of the oil is not just a necessary condition of burning it as fuel; it is also sufficient to bring about that result because it is agreed that extracting the oil from the ground guarantees that it will be refined and burnt as fuel. As discussed above, a situation where X is both necessary and sufficient to bring about Y is the strongest possible form of causal connection - much stronger than is required as a test of causation for most legal purposes.

1. It is also common ground that general estimates of combustion emissions can be made using methodology such as that described in guidance issued by the Institute of Environmental Management and Assessment. Estimating the combustion emissions which will occur if the project proceeds is not a difficult task. It could easily have been performed by the developer and has in fact been performed by Dr Jessica Salder, the council officer who reviewed the environmental statement, when she made a witness statement in these proceedings. All that is required is to identify from published sources a suitable “conversion factor” - which is the estimated amount of carbon dioxide emitted upon combustion of each tonne of oil produced. The total estimated quantity of oil to be produced is then multiplied by this conversion factor to calculate the total combustion emissions. In her evidence Dr Salder used a conversion factor of 3.22 tonnes of carbon dioxide for each tonne of oil produced. Multiplying the total estimated output from the proposed project of 3.3 million tonnes of oil (see para 31 above) by this factor gives an estimated total of 10.6 million tonnes of CO₂ emissions over the lifetime of the project.

1. It is instructive to compare the amount of these emissions with the “direct” GHG emissions at the well site over the lifetime of the project which were included in the environmental statement. The estimated amount of the “direct” GHG emissions was 140,958 tonnes of CO₂. As well as providing this figure, the developer calculated the proportion which this figure would represent of the total UK carbon budget. Based on this calculation, the environmental statement described the effects of the proposed development on climate as “negligible”. Had the combustion emissions been included in the assessment, the figure for GHG emissions attributable to the project would have been nearly two orders of magnitude greater and could not have been dismissed as “negligible” in that way.

Direct and indirect effects

1. Article 3(1) of the EIA Directive requires the EIA to assess both the “direct and indirect” effects of a project on the specified environmental factors, one of which is climate. The express requirement to assess indirect as well as direct effects is clearly intended to emphasise the wide causal reach of the required assessment. This is further emphasised by the stipulation in Annex IV, para 5, that the description of the likely significant effects on the factors specified in article 3(1) should cover both the direct effects and “any indirect, secondary, cumulative, transboundary, short-term, medium-term and long-term, permanent and temporary, positive and negative effects of the project.” It would be hard to devise broader wording than this.

1. From one point of view the distinction between “direct” and “indirect” effects does not matter, as both types of effect must be assessed in the EIA process. There is still, I think, some value in considering what these terms mean. No case law has been cited which has sought to define “direct” and “indirect” effects. A natural way to understand the distinction - and how it is commonly used in social sciences - is to define a direct effect of one event on another event as an effect which is not mediated by one or more variables. An indirect effect, by contrast, is one which depends on one or more variable intermediate factors that may alter the total effect observed: see eg J Pearl, “Direct and indirect effects” in Proceedings of the American Statistical Association, Joint Statistical Meetings (2005), pp 1572–1581.

1. On this definition combustion emissions are direct effects of the extraction of oil because they are almost entirely independent of any intermediate variables. To know that combustion emissions will occur and quantify them, there is no need to know anything about where the oil will go after it is extracted or what the oil will be used for or when or where it will be burnt. It is sufficient to know - as is known with virtual certainty - that the oil will be refined and ultimately used as fuel. There are no variables in the intervening events which will significantly alter the fact or amount of the combustion emissions or their impact on climate. So on this definition the combustion emissions are a direct effect of the activity of extracting the oil.

1. An alternative approach is to draw the distinction by reference to the immediate source of the impact. This approach gets some support from guidance issued by the European Commission. In May 1999 the European Commission published Guidelines for the Assessment of Indirect and Cumulative Impacts as well as Impact Interactions. These Guidelines were said to be intended for use by EIA practitioners and developers and to be designed to apply to a wide range of projects and to assist in the EIA process throughout Member States.

1. After observing that there are no agreed and accepted definitions, the Guidelines define “indirect impacts” as:

   “Impacts on the environment, which are not a direct result of the project, often produced away from or as a result of a complex pathway. Sometimes referred to as second or third level impacts, or secondary impacts.”

   This definition offers little assistance beyond spelling out that, as might be thought obvious, indirect effects can be and often are produced away from the site of the project.

1. Somewhat more useful are the definitions given in the 2013 Guidance referred to at para 24 above. This defines “direct effects” as:

   “Environmental effects directly caused by the preparation, construction or operation of a project in a particular location.” (p 6)

   “Indirect effects/impacts” are defined as:

   “Effects/impacts that occur away from the immediate location or timing of the proposed action, eg quarrying of aggregates elsewhere in the country as a result of a new road proposal, or as a consequence of the operation of the project (see also secondary effects).” (p 7)

   The definition of “secondary effects”, to which cross-reference is made, is:

   “Effects that occur as a consequence of a primary effect or as a result of a complex pathway.” (p 8)

1. When applied to GHG emissions, these definitions distinguish between those which are “direct” and “indirect” effects in much the same way as the GHG Protocol and IFRS S2. As noted earlier, those standards define direct GHG emissions (labelled “scope 1”) as GHG emissions that occur from sources that are owned or controlled by an entity. Indirect GHG emissions (ie scope 2 and 3) are defined as GHG emissions that are a consequence of the activities of an entity but occur at sources owned or controlled by another entity.

1. On these definitions the combustion emissions are indirect effects of the project, as they will occur, probably far away from the project site, at sources owned or controlled by entities other than the developer / site operator. They are like impacts from the quarrying of aggregates in the illustration given by the Commission in defining “indirect effects.” If the quarrying of aggregates used in building a new road would be likely to generate significant GHG emissions, the Commission contemplates, correctly in my view, that these would be indirect effects of the project which, if significant, must therefore be assessed. I can see no reason why combustion emissions that will occur elsewhere as a consequence of the operation of a project to extract oil should be regarded differently.

1. The 2013 Guidance, at p 29, also provides a table of “examples of main climate change and biodiversity concerns to consider as part of EIA.” Under the heading “climate change mitigation” the table lists: “direct GHG emissions”; “indirect GHG emissions due to increased demand for energy”; and “indirect GHG emissions caused by any supporting activities or infrastructure that is directly linked to the implementation of the proposed project (eg transport …).” In the terminology of the GHG Protocol and IFRS S2, the first of these categories corresponds broadly to scope 1 GHG emissions, the second to scope 2 GHG emissions, and the third to certain types of scope 3 GHG emissions.

1. Doubtless the categories given as examples were chosen because they are likely to be relevant to many different types of project - unlike combustion emissions which arise as a consequence of projects for the extraction of fossil fuels. But there is no suggestion that the categories stated as examples are considered to be exhaustive of the circumstances in which GHG emissions can occur as indirect effects of a project. To the contrary, the 2013 Guidance states expressly that they are examples only, that the list “is not comprehensive”, that “the issues and impacts relevant to a particular EIA should be defined by the specific context of each project”, that “flexibility is therefore needed”, and that the table provided “should be used only as a starting point for discussion.” The examples given therefore cannot be read as somehow cutting down the definition of “indirect effects” given earlier in the 2013 Guidance. Applying that definition, the combustion emissions are “indirect effects” of the project in issue here.

Transboundary effects

1. It is worth emphasising that the EIA Directive does not impose any geographical limit on the scope of the environmental effects of a project which must be identified, described and assessed when an EIA is required. In principle, all likely significant effects of the project must be assessed, irrespective of where (or when) those effects will be generated or felt. There is no justification for limiting the scope of the assessment to effects which are expected to occur at or near the site of the project. The fact that an environmental impact will occur or have its immediate source at a location away from the project site is not a reason to exclude it from assessment. There is no principle that, if environmental harm is exported, it may be ignored.

1. That is no less true if the effect will be produced or felt outside the territorial jurisdiction of the state (here, the UK) whose national law requires the EIA to be carried out. If there were otherwise any doubt about this, it is removed by the express inclusion in Annex IV, para 5, of “transboundary” effects in the description of the likely significant effects on the factors specified in article 3(1) which should be covered (see para 83 above).

1. The developer in the present case advanced an argument that the express requirement to assess “transboundary” effects actually tells in favour of a narrow interpretation of the scope of the effects on climate which are to be assessed. This paradoxical claim makes no more sense on analysis than it does at first sight. The argument is based on article 7 of the EIA Directive. Article 7 applies where a Member State is aware that a project intended to be carried out in one Member State is likely to have significant effects on the environment in another Member State. In such a case the Member State in whose territory the project is intended to be carried out must give the other Member State an opportunity to participate in the environmental decision-making procedures. Article 7 also requires the Member States concerned to enter into consultations regarding the potential transboundary effects of the project. The argument made is that it cannot sensibly have been intended that the article 7 procedure should have to be invoked in any case where a project is likely to give rise to “downstream” GHG emissions in another Member State.

1. Plainly it would be impossibly burdensome if, for example, in relation to the present project it were necessary to give every Member State of the European Union an opportunity to participate in the environmental decision-making procedures on the footing that oil produced from the well site might find its way into that country and generate GHG emissions when used as fuel. But that is a false fear. There is no risk of such an obligation arising, for two reasons. First, there is no way of knowing where the oil produced from the well site will ultimately be used as fuel. There is therefore no foreign state of which it can be said (on anything more than speculation) that the oil is likely to be consumed there. Second, and more fundamentally, it is wrong in any event to treat the impact on climate of GHG emissions as local to the places where the combustion occurs.

1. Climate change is a global problem precisely because there is no correlation between where GHGs are released and where climate change is felt. Wherever GHG emissions occur, they contribute to global warming. This is also why the relevance of GHG emissions caused by a project does not depend on where the combustion takes place. If an activity is carried on which will inevitably result in significant GHG emissions, people who carry on the activity cannot be heard to say: “These emissions are not effects of our activity because they are occurring far away among people of whom we know nothing.”

1. On a proper interpretation, the obligations set out in article 7 of the EIA Directive are not triggered by awareness that, as a consequence of a project intended to be carried out in one Member State, GHG emissions are likely to occur in another Member State. To avoid absurdity, the reference in article 7(1) to “effects on the environment in another Member State” must be read as meaning effects on the environment which are specific to that other Member State rather than purely global effects that affect the whole world. Thus effects on climate of GHG emissions occurring in one state as a consequence of a project undertaken in another state do not fall within article 7.

1. This conclusion is reinforced by the 1991 UN Convention on Environmental Impact Assessment in a Transboundary Context (known as the “Espoo Convention”), to which - as recital (15) of the EIA Directive confirms - article 7 is intended to give effect. Article 1(8) of the Espoo Convention defines a “transboundary impact” to mean “any impact, not exclusively of a global nature, within an area under the jurisdiction of a Party caused by a proposed activity the physical origin of which is situated wholly or in part within the area under the jurisdiction of another Party” (emphasis added). The EIA Directive does not itself define a “transboundary impact” or “transboundary effect”, but it is reasonable to interpret these terms where they are used in the EIA Directive as having a similar meaning to their meaning in the Espoo Convention.

1. The fact that the combustion emissions from the oil produced are likely to occur outside the UK therefore does not give rise to any requirement to invoke the article 7 procedure. As the effects of GHG emissions on the environment are exclusively of a global nature, they are not “transboundary effects” which engage obligations of consultation between the nation in which the oil is produced and the nation(s) in which its combustion occurs.

1. The council’s approach

1. Coming now to the EIA carried out in this case, the legal error made as regards the scope of the assessment is apparent on the face of the relevant reports. The environmental statement explained that the developer had confined its assessment of GHG emissions to the “direct releases of greenhouse gases from within the well site boundary.” Admittedly, therefore, the developer chose to provide information only about the direct effects of the project on climate and to exclude indirect effects, contrary to the express requirement in the EIA Directive and 2017 Regulations that indirect effects must be included. The council accepted and adopted this approach. As a result, the officer’s report on which the council’s decision to grant development consent was based advised that the proposed development would not give rise to significant effects on the climate by way of GHG emissions “directly attributable” to the operation of the scheme. GHG emissions indirectly caused by the project were not considered. Again, therefore, the scope of the assessment self-evidently did not comply with the legal requirement to assess both direct and indirect effects of the proposed development.

Effects “outwith the control” of the site operators

1. The flaws in the reasons given by the developer and accepted by the council for limiting the scope of the assessment in this way are also in my view plain. The fact that the combustion emissions would emanate from activities beyond the well site boundary which were not themselves part of the project was not a valid reason to exclude them. An impact is not precluded from being an effect of a project by the fact that its immediate source is another activity that occurs away from the project site. As already discussed, it is in the very nature of “indirect” effects that they may occur as a result of a complex pathway involving intermediate activities away from the place where the project is located.

1. The associated reason given that GHG emissions beyond the well site boundary are “outwith the control of the site operators” (see para 36 above) was equally flawed. The combustion emissions are manifestly not outwith the control of the site operators. They are entirely within their control. If no oil is extracted, no combustion emissions will occur. Conversely, any extraction of oil by the site operators will in due course result in GHG emissions upon its inevitable combustion. It is true that the time and place at which the combustion takes place are not within the control of the site operators. But the effect of the combustion emissions on climate does not depend on when or where the combustion takes place. Those factors are irrelevant to the size and significance of the environmental impact.

1. One potential benefit of the EIA process is that it may sometimes result in the identification of ways in which the design of the project can be modified without undue detriment to its aims so as to avoid or reduce what would otherwise have been a significant adverse environmental effect of the project. The EIA Directive contains provisions specifically aimed at this. Thus, article 5(1)(c) states that the information provided by the developer in the environmental statement must include “a description of the features of the project and/or measures envisaged in order to avoid, prevent or reduce and, if possible, offset likely significant adverse effects on the environment”; see also Annex IV, para 7. And where development consent is granted, the decision to grant it must incorporate “a description of any features of the project and/or measures envisaged to avoid, prevent or reduce and, if possible, offset significant adverse effects on the environment”: see article 8a(1)(b). Member States must ensure that any such features or measures are implemented by the developer: article 8a(4).

1. In the case of oil extraction, there are no measures within the control of the developer which, if the project proceeds, would avoid or reduce the combustion emissions and their impact on climate. But that is not a reason to dispense with an EIA. Identifying mitigating measures, where they are available, may be a valuable result of the EIA process. But it is not its sole - or even its main - purpose. If there are no measures which could be taken to mitigate adverse environmental effects of a project, then this is itself something the decision-maker and the public need to know. The EIA process would not fulfil its essential purpose of ensuring that decisions likely to affect the environment are made on the basis of full information if the fact that significant adverse effects are unavoidable were treated as a reason not to identify and assess them.

Other environmental regimes

1. The further reason given by the developer and accepted by the council for confining the assessment to direct GHG emissions from sources within the well site boundary was that the council should not concern itself with emissions that will occur “downstream” when the oil produced from the wells is processed and used because such processes are regulated by other, non-planning regimes and the council “can assume that these regimes will operate effectively to avoid or mitigate the scope for material environmental harm” (see para 36 above).

1. Para 122 of the developer’s environmental statement, which made this argument, quoted from the National Planning Policy Framework (July 2018), para 183, which stated:

   “The focus of planning policies and decisions should be on whether proposed development is an acceptable use of land, rather than the control of processes or emissions (where these are subject to separate pollution control regimes). Planning decisions should assume that these regimes will operate effectively. …”

   Reference was also made in footnotes to para 122 to the National Planning Practice Guidance, Minerals, para 012, which was in similar terms, and to R (Frack Free Balcombe Residents Association) v West Sussex County Council [2014] EWHC 4108 (Admin). This case was cited for the proposition that a “local planning authority may consider that matters of regulatory control can be left to a statutory regulatory authority to consider.”

1. It was a clear legal error to regard this aspect of planning policy as a justification for limiting the scope of an EIA. An assumption made for planning purposes that non-planning regimes will operate effectively to avoid or mitigate significant environmental effects does not remove the obligation to identify and assess in the EIA the effects which the planning authority is assuming will be avoided or mitigated. This is clear from a line of authority referred to in the Frack Free Balcombe Residents Association case. In R (Lebus) v South Cambridgeshire District Council [2002] EWHC 2009 (Admin); [2003] Env LR 17, paras 41-46, Sullivan J held that it is an error of law to reason that no environmental statement is needed because, although a project would otherwise have significant effects on the environment, mitigation measures will render them insignificant. What is required in such a case is an environmental statement setting out the likely significant effects and the measures which can be taken to mitigate them; see also R (Champion) v North Norfolk District Council [2015] UKSC 52; [2015] 1 WLR 3710, paras 49-51. The same principle must apply in determining the scope of the assessment required where an environmental statement is carried out.

1. As pointed out in those cases, the requirement in the EIA Directive to describe “measures envisaged to avoid, prevent or reduce and, if possible, offset significant adverse effects on the environment” (see para 104 above) implies that the potentially significant environmental impacts of a development should be described together with the measures expected to avoid or reduce them. The public is thereby able to understand the assumption made and to comment on it.

1. In any case it does not appear that there are any separate pollution control or other non-planning regimes which could be relied on to avoid or reduce the combustion emissions which would be indirect effects of the project proposed here. No such regimes have been identified in these proceedings. Indeed, it follows from the agreed fact that it is inevitable that oil produced from the well site will be refined and will eventually undergo combustion, which will produce GHG emissions, that the combustion emissions are unavoidable if the project proceeds and no pollution control regime could be relied on to prevent or reduce them.

1. The reasons accepted by the council for excluding the combustion emissions from consideration and assessing only direct GHG emissions from within the well site boundary are therefore demonstrably flawed. Unless there is some other reason not given in the environmental statement or the council’s review of it which required the EIA to exclude the combustion emissions, it follows that the council’s decision was unlawful.

1. By this qualification, the Supreme Court was able to integrate into its analysis the decisions in the previous Irish cases of An Taisce – National Trust for Ireland v An Bord Pleanála (Edenderry Power Ltd, Notice Party) [2015] IEHC 633 (the environmental effects of extraction of peat for use in a thermal power plant had to be assessed in the EIA for the power plant project as indirect effects of that project within the meaning of article 3(1) of the EIA Directive) and O Grianna v An Bord Pleanála [2014] IEHC 632(the connection of a wind turbine development with the national grid was fundamental to the project so that the cumulative effect of both should be assessed). In the Edenderry case, the judge held (para 66) that what could count as an indirect effect of a project was subject to a remoteness test, which was satisfied on the particular facts of the case, and the Supreme Court endorsed this analysis: paras 88-91. (I interpose that this indirect effect could be regarded as analogous to the inclusion of greenhouse gas emissions “caused by any supporting activities or infrastructure that is directly linked to the implementation of the proposed project” within the concept of “indirect effects of a project” as indicated by the Commission in the 2013 Guidance: para 236 above). By contrast, the environmental effects of an increase in cattle population were too remote from the cheese factory project to qualify as “indirect effects” of that project.

1. The Supreme Court justified its conclusion as follows: (i) the alternative open-ended interpretation of article 3(1) would mean that there were “hardly any limits but the sky” regarding the extent of indirect effects of a project which had to be brought into account in the EIA for that project (paras 100 and 104-105), which would be incompatible with coherent decision-making by the relevant planning authorities by reference to determinate factors; (ii) the language of article 5(1) and in Annex IV, point 1, para (c) “strongly suggest[s] that the information to be supplied must be firmly tethered to the project itself, so that the indirect significant effects to be assessed must be intrinsic to the construction and operation of the project” (para 106); and (iii) the EIA Directive “was ultimately designed to assist in identifying and assessing the direct and indirect significant environmental effects of a specific project, including (post-2014) the climate change effects of such a project”, and its scope “should not be artificially expanded beyond this remit” and it should not “be conscripted into the general fight against climate change by being made to do the work of other legislative measures …” (para 107).

1. Those measures included the Irish Climate Action and Low Carbon Development (Amendment) Act 2021 which, like the UK’s Climate Change Act 2008, sets out the Irish Government’s commitment at a national level to achieve the goal of carbon-neutrality by 2050. The Supreme Court pointed out that the wider indirect environmental consequences of milk production and the activities of the dairy sector should be the subject of national or sectoral measures, rather than being considered at the local level in relation to a decision on planning permission (para 107).

1. The Supreme Court’s analysis regarding the interpretation of the EIA Directive is closely aligned with that set out above. I agree with it. The Supreme Court considered that its interpretation of the EIA Directive was acte clair and therefore no reference to the CJEU was required: paras 155-157. The Commission has not brought infraction proceedings against Ireland for adopting that interpretation, which indicates that the EU institutions do not consider the Supreme Court was wrong.

1. Other authorities

1. The appellant referred to several cases in other jurisdictions which concerned projects for extraction of hydrocarbons: Vereniging Milieudefensie v Royal Dutch Shell Plc (Case NoC/09/571932) 26 May 2021 (decision of the Hague District Court); Nature and Youth Norway v The State of Norway (represented by the Ministry of Petroleum and Energy), decision of the Norwegian Supreme Court, 22 December 2020, HR-2020-2472-P (Case No 20-051052SIV-HRET); Gray v Minister for Planning [2006] NSWLEC 720; (2006) 152 LGERA 258 (decision of the New South Wales Land and Environment Court); Gloucester Resources Ltd v Minister for Planning [2019] NSWLEC 7; (2019) 234 LGERA 257 (decision of the New South Wales Land and Environment Court); and, from the USA, WildEarth Guardians v Zinke 368 F Supp 3d 41, 73 (DDC 2019) (decision of the Federal District Court for the District of Columbia). The legal regimes applicable in these cases were different from the EIA Directive. As Sir Keith Lindblom pointed out in the Court of Appeal (paras 72-78), none of these authorities has any direct bearing on the legal issues in the present case, which are primarily concerned with the proper interpretation of the EIA Directive. It is not necessary to lengthen this judgment by referring to them in detail.

1. After the hearing, the appellant sent to the court a first instance authority from Norway: Greenpeace Nordic v The State of Norway (represented by the Ministry of Petroleum and Energy) (Case No 23-099330TVI-TOSL/05), judgment of the Oslo District Court of 18 January 2024. A similar comment applies. That case considered challenges to the grant of oil production licences for North Sea oil fields where there had not been an assessment of the downstream greenhouse gas emissions which would be produced by combustion of the oil extracted from those fields. The challenges were based on a number of legal regimes, including Norwegian statute law, the EIA Directive as applied in Norwegian law pursuant to the European Free Trade Agreement to which Norway is party, the European Convention on Human Rights and the Norwegian Constitution. The District Court held that the grant of the licences was invalid by reason of the omission of an assessment of the downstream emissions, relying primarily on Norwegian statute law as interpreted in light of the Norwegian Constitution. It then turned to consider the EIA Directive. As an addition, in part of its reasoning which was not critical for its decision, the District Court held that there had been a breach of the EIA Directive. The District Court was referred to the judgment of the Court of Appeal in the present case but declined to analyse it because “a comparative analysis of other countries’ domestic law … has limited significance” (p 50 of the official translation). We have been informed that the District Court’s decision is now under appeal to the Norwegian Supreme Court.

1. With all due respect, I do not consider that the judgment of the District Court can be regarded as a persuasive authority. The reasoning is relatively short. The judge did not attempt to face up to the analysis set out by Holgate J and the Court of Appeal. She did not refer at all to the judgment of the Irish Supreme Court in Kilkenny Cheese, nor to the judgment of the Inner House of the Court of Session in Greenpeace.In my view the judge placed undue weight on the words “indirect significant effects” in article 3(1) read outside the context of the scheme of the EIA Directive and without regard to its drafting history. She seems to have assumed that simply by use of the word “indirect” the downstream emissions at issue were within the ambit of that provision, without considering the purpose and scheme of the EIA Directive in the detail in which they have been examined in these proceedings and in those other cases. The judge wrongly considered that Abraham supported her view (pp 49-50 of the official translation; contrast paras 299-301 above); she did not refer to Brussels Airport, which provides guidance regarding the proper interpretation of Abraham (see para 302 above); and she misquoted the judgment in Abraham at para 43 as referring to possible effects “from the use and exploitation of the end product” (which, in a case involving a project to extract oil, suggests a reference to the oil). In fact, in that passage the CJEU said only that it would be contrary to the purpose and scope of the 1985 Directive “to take account, when assessing the environmental impact of a project or its modification, only of the direct effects of the works envisaged themselves, and not of the environmental impact liable to result from the use and exploitation of the end product of those works” (emphasis added), meaning the physical works involved in the project itself (in that case, the building of an extended airport runway).

1. The approach of Moylan LJ in the Court of Appeal

1. As noted above, Moylan LJ in his dissenting judgment in the Court of Appeal placed particular emphasis on point 14 in Annex I (para 210 above). With respect, I do not consider that this provision can bear the weight he places on it.

1. The provision was not included in Annex I to the 1985 Directive. It first appeared in Directive 97/11, which was the first Directive amending the 1985 Directive, in part to bring it into line with the Espoo Convention. In fact the Espoo Convention, in its original version, did not include this text. Instead, point 15 of Appendix I to the Convention referred to “Offshore hydrocarbon production”. Directive 97/11 introduced significant revisions to Annex I to the 1985 Directive, including Annex I, point 14. Recital (6) of Directive 97/11 introduced the revisions in very broad terms, simply stating that “… it is appropriate to make additions to the list of projects which have significant effects on the environment and which must on that account as a rule be made subject to systematic assessment”.

1. 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.

1. 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.

1. Further, when one looks at Annex I, point 14 in the context of Annex I and the EIA Directive as a whole, there is no good reason to interpret it as being concerned with scope 3 or downstream greenhouse gas emissions. No other item in the list of Annex I projects for which an EIA is mandatory are singled out for such treatment on the basis of their downstream environmental effects, even though several of them are likely to be associated with such effects (eg point 1, crude-oil refineries; point 6, chemicals production; points 7 and 8, construction of certain roads, railways, waterways and ports; point 19, quarries and open-cast mining). Rather, where in Annex I projects are identified by reference to the volume of production, as in point 14, the reason is that this indicates that they are construction projects of such a substantial size as to warrant a mandatory EIA without the need for a screening opinion. The reference in point 14 to the relevant volume of production being for commercial purposes seems to me to be included simply in order to emphasise this, as that is likely to affect the extent of the construction involved by comparison to, say, a project for experimental drilling which might meet that volume level but only for a short period.

1. The approach of the majority in the Court of Appeal

1. As noted above, the majority in the Court of Appeal considered that Holgate J was wrong to conclude that the answer to the question of the proper application of the EIA Directive could be determined as a matter of law by reference to the terms of the Directive. Instead, in their view, it was a matter for the evaluative assessment of the Council as local planning authority, subject to the requirement of Wednesbury rationality, whether the downstream environmental effects from the combustion of refined hydrocarbon fuel produced from the crude oil extracted from the Site should be brought into account in the EIA as indirect effects of the project or not.

1. In that regard, at paras 57-60, Sir Keith Lindblom cited a number of authorities, including R (Blewett) v Derbyshire County Council [2003] EWHC 2775 (Admin); [2004] Env LR 29; Bowen-West v Secretary of State for Communities and Local Government [2012] EWCA Civ 321; [2012] Env LR 22; and Friends of the Earth, paras 126-144 in the judgment of Lord Hodge and Lord Sales. Sir Keith Lindblom and Lewison LJ considered that the Council’s assessment that the downstream greenhouse gas emissions from eventual use of the refined fuel were not indirect effects of the project within the meaning of article 3(1) of the EIA Directive could not be said to be irrational, and therefore was a lawful assessment according to this standard.

1. In my respectful opinion, however, that is not a satisfactory way of examining the issue regarding the application of the EIA Directive which arises in this case. If correct, it would mean that one local authority conducting an EIA for a project to drill for oil could lawfully regard the downstream greenhouse gas emissions following on from that project as “indirect significant effects of the project” within the meaning of article 3(1) of the Directive, while another local authority conducting an EIA for the same kind of project could lawfully conclude that such emissions were not “indirect significant effects” of that project within the meaning of that provision. This would lead to inconsistent and unprincipled differences in result depending on the political and policy approach of the relevant decision-maker.

1. That cannot have been intended to be the effect of the EIA Directive in relation to such a fundamental issue of its interpretation which is common across a range of equivalent cases. The EIA Directive is intended to harmonise the approach to be adopted on common issues, not to authorise radically different approaches to identical common fundamental issues of this kind.

1. Accordingly, I consider that there is considerable merit in the approach of Holgate J at first instance in this case. The answer to be given on such a fundamental question affecting the application of the EIA Directive ought to be the same and should be taken to be determined one way or the other as a matter of principle according to the terms of the Directive, read in the light of the purpose and the scheme of the Directive.

1. This is not to doubt the guidance in the authorities referred to in para 322 above. In many cases, whether a particular environmental effect is sufficiently connected with a particular project so as to qualify as an “indirect effect of the project” will call for an evaluative assessment by the planning authority in the light of the scientific and other evidence in the specific circumstances of that case. Where the application of the general test set out in the EIA Directive turns on the specific circumstances of an individual case, it is the rationality standard which applies. However, in some circumstances an issue concerning the application of that test may be so fundamental to the operation of the EIA Directive and so clearly framed in a common way across a range of cases that only one answer can lawfully and rationally be given regarding the application of that test. In my view, that is the position here.

1. The approach of Holgate J: interpretation of the EIA Directive as a matter of law

1. It follows from the discussion above that I consider that Holgate J was right to approach the issue regarding the application of the EIA Directive in this case as a matter determined directly by a proper interpretation of the Directive as a matter of law, rather than as determined by an assessment of whether the Council was rational or not in deciding that the downstream greenhouse gas emissions relied on by the appellant were not “indirect effects” of the oil well project at the Site. If the Council had assessed, to the contrary, that they were “indirect effects” of that project, requiring consideration as part of the EIA, it would have erred in law. On a fundamental issue like this, there was only one proper answer that could lawfully and rationally be given when applying the EIA Directive according to its terms. This was the approach which Mr Richard Moules KC, for the Secretary of State, endorsed at the hearing in this court. I agree with his submission.

1. The inconsistency point

1. The inconsistency point raised on the appeal is explained at para 198 above. In my judgment, in agreement with the Court of Appeal, there is no merit in it. In considering whether to grant planning permission, the Council was obliged to have regard to national policy promulgated by the Government regarding climate change and the extraction of oil. It did not err in doing so. National planning policy is a relevant material consideration when considering whether planning permission should be granted for a development. As I have explained above, the approach to be adopted when balancing the economic desirability of extraction of minerals, including oil, and security of energy supply against wider detrimental impacts from such activity, including their effect on climate change, is pre-eminently a matter for national policy, not local determination.

1. On the other hand, the application of the EIA Directive in relation to the proposed development was the responsibility of the Council, as local planning authority. The Council had to comply with its legal obligations under the EIA Directive. It did so.

1. There was no inconsistency involved in the Council’s approach to these two matters. The EIA Directive leaves matters of general policy in relation to the extraction of oil and climate change open for determination at a national level, and the Council was right to take national policy on this point into account in the way it did.

Conclusion

1. For the reasons given above, which differ from those given by the majority in the Court of Appeal but accord with those given by Holgate J, by the Court of Session in Greenpeace and by the Supreme Court of Ireland in Kilkenny Cheese, I would dismiss this appeal.

1. In relation to the attempt in Kilkenny Cheese and in the present case to enlist the EIA Directive in the worthy cause of combating climate change, by seeking to press it into service in relation to requiring EIA in respect of downstream or scope 3 greenhouse gas emissions, it is relevant to bear in mind the cautionary words of Lord Bingham of Cornhill in Brown v Stott [2003] 1 AC 681, 703, quoting from Hamlet in relation to the European Convention on Human Rights:

   “The Convention is concerned with rights and freedoms which are of real importance in a modern democracy governed by the rule of law. It does not, as is sometimes mistakenly thought, offer relief from ‘The heart-ache and the thousand natural shocks That flesh is heir to.’”.

   As Lord Bingham pointed out, that Convention had to be interpreted according to its terms, not in an effort to produce a remedy for every problem which might be identified in a particular situation. So, in the present context, the EIA Directive, interpreted according to its terms, has a valuable role to play in relation to mitigating greenhouse gas emissions associated with projects for which planning permission is sought, but it should not be given an artificially wide interpretation to bring all downstream and scope 3 emissions within its ambit as well. That has not been stipulated in the text of the EIA Directive, is not in line with its purpose and would distort its intended scheme.

1. In Brussels Airport, the CJEU observed (para 29) that “a purposive interpretation of the Directive [in that case the 1985 Directive, now the EIA Directive] cannot … disregard the clearly expressed intention of the legislature”. In my view, in the present case both the clearly expressed intention in the text of the EIA Directive and a purposive interpretation of that Directive point to the same result.