The climes, they are a changin’

‘Tempora mutantur, nos et mutamur in illis’ goes the Latin proverb (Ovid, or Emperor Lothar Ist, take your pick). Times change, and we change with the times, writes William Orbinson KC.

As we await the Court of Appeal’s findings on the A5, let us not forget the implications of the Supreme Court’s decision in Finch, what has happened since, and see where it leaves us now, leaving aside what the Climate Change Act means for the A5, and more widely.

In recent years, the courts have embraced the importance of assessing climate change implications, for example, No Gas Caverns, Verein KlimaSeniorinnen Schweiz, ICJ Advisory Opinion, A5, Finch, but is that really that surprising in Environmental Impact Assessment (EIA) terms?
Compliance with the EIA Regulations is a pre-requisite for the lawful grant of planning permission for EIA development. Regardless of what precisely Finch means for developers, the regulations require assessment in the environmental statement (ES) of all the likely significant effects of all forms of EIA development, including the direct effects, indirect effects, positive and negative effects, and cumulative effects. They specifically require a description of likely significant effects on climate, including from greenhouse gas emissions, and vulnerability of the development to climate change.
The ES must describe proposed mitigation measures and assess their effectiveness. Those requirements apply to the construction, operational, and decommissioning phases.

In that context, Finch confirmed that, (at least) for projects with climate change implications such as oil production, the ES is legally inadequate if it does not assess the likely significant indirect ‘downstream’ effects of its greenhouse gas emissions.

While the Supreme Court was clear that those effects had to be capable of assessment, that negligible effects need not be assessed, and that for an effect to be likely there had to be sufficient evidence to support a reasoned conclusion that it was likely, what is equally clear is that, where the requirement for assessment applies, assessment must be robust. Over the last year, caselaw has clarified the Finch message, but its essence remains clear.

So, the key Finch takeaway is that if promoting EIA development the prudent course is to ensure the ES assesses the project’s indirect carbon effects, and that that assessment is robust, technically and, above all, legally. Does it assess all carbon inputs such as materials, fuel, travel, haulage, power etc? Carbon generated during the operational phase, direct and indirect emissions and costs? Cumulative impacts with other carbon-impacting projects? Transboundary impacts, remembering that climate change is a global issue? Decommissioning or restoration carbon impacts?

Dodging those tricky questions may save a few quid in the short term, but would be catastrophic in the longer term. And not just for the environment.

William Orbinson KC
Legal Associate of the Royal Town Planning Institute
Affiliate of the Irish Planning Institute

T: 07860 245324
E: william.orbinson@barlibrary.com
W: www.williamorbinson.co.uk