Supreme Court brews up trouble for Starmer

The Supreme Court has today opened a can of worms large enough to envelop the whole of the land use planning system. By a majority verdict, 3 to 2, the judges upheld a claim by a local resident who claimed that the local planning authority had acted unlawfully by failing to take into account the downstream emissions consequent on using the oil that would be extracted from the expansion of a small well in Surrey. The decision documents can be found here.

A lower court had rejected the claim on the grounds that the the well was not responsible for the emissions, since these arose from a refined product produced subsequently.

The Supreme Court over-ruled this decision on the ground that ‘The process of refining crude oil does not alter its basic nature or intended use and cannot reasonably be regarded as breaking the causal connection between the extraction of the oil and its subsequent combustion.’

The lower court had not taken this view on the ground that it would make other projects such as steel production liable for the emissions of, for example, a vehicle subsequently manufactured from the steel. The Supreme Court did not share these concerns (see paragraphs 112 to 139, and in particular para 123):

The oil produced from the well site will not be used in the creation of a different type of object, in the way that a component part is incorporated – along with many other different and equally necessary components – in manufacturing a motor vehicle or aircraft. Refining the oil is simply a process that it inevitably undergoes on the pathway from extraction to combustion. Nor is there any element of conjecture or speculation about what will ultimately happen to the oil. It is agreed that it will inevitably be burnt as fuel. And a reasonable estimate can readily be made of the quantity of GHGs which will be released when that happens.

It is the opinion of the Supreme Court that this judgment does not ‘open the floodgates’, as the lower court had feared. However, that will strike anyone familiar with the planning system as naïve in the extreme.

Lawyers will now surely argue that the downstream emissions that result from a planning project, a refinery for example, or a gas storage project, or perhaps even a factory making conventionally fuelled vehicles, such as cars or aeroplanes, or components for them, do not involve any element of ‘conjecture or speculation’, and that ‘reasonable estimates’ can be ‘readily made of the GHGs which will be released’ as a result.

And this tangled mess will come on top of the absolutely certainty that any attempt to develop the substantial fossil fuel resources in the United Kingdom must now include in its Environmental Impact Assessment the emissions resulting from the use of that fuel.

It is often wrong to condemn a court for a decision; judges are responsible for interpreting the law not for making it. A judge’s decision is not necessarily a reflection on their acumen, but simply reveals that the law is an ass. But in this case it is hard to resist criticising the judges. The views of the lower court, and those of the dissenting judges on the Supreme Court itself are, very properly, quoted at length in the decision, and display that far-sighted and moderate rationality we call wisdom. They could see the consequences. By comparison, the Supreme Court appears gives evidence of a simple-minded fundamentalism.

Perhaps that is psychologically inevitable when a small panel of judges is put in the position of being ‘Supreme’. The oxygen at such heights is rather thin, and leaves them delirious with authority. It is hugely to the credit of the dissenting judges that they did not succumb to such intoxication. Nevertheless, this decision is yet another argument for the dissolution of the Supreme Court.

In the short-term, environmentalists will celebrate this result, and the Labour Party environmental lobby will doubtless imagine that it has a firmer legal basis for proceeding with its aggressive renewables policy. Both would be mistaken, since this decision in reality brings the crisis-driven termination of the green agenda one step closer. Without the support of a fossil-fuelled economy it is impossible to maintain the pretence that the toy policies of wind and solar are compatible with growing public wellbeing. With this decision, the fossil fuel industry has been pushed closer to the edge of extinction, and consequently the countdown to distressed policy correction has begun. Keir Starmer should be terrified at the prospect.