The Supreme Court's curious source

Was the judgment on the Horse Hill oil well a case of judicial activism?

Sarah Finch, on behalf of the Weald Action Group, took Surrey County Council to court for failing to take account of ‘downstream’ emissions in the Environmental Impact Assessment for the planning application for the Horse Hill oil well in Surrey. Downstream emissions are those from the combustion of the products from the oil well. In the submitted EIA, the developers included and Surrey CC considered only the direct emissions from the activities involved in the extraction, not from the products resulting from the extraction.

The case reached the Supreme Court, who decided 3 to 2 in favour of Finch/WAG. This is expected to have a further chilling effect on new UK oil and gas projects.

I largely have faith in British Courts. They are not perfect, but I have seen little reason to doubt that they are mostly intelligent people trying to reach reasonable conclusions in good faith. Criticisms of court decisions are often made by people who have looked at the headlines but not the judgments.

We all suffer when we lose faith in our institutions or if courts become politicised, far more than the consequences of an individual bad decision. The other two branches of government - legislature and executive - have performed so poorly that there is little reason to retain any more faith in them than that they ‘mean well’. British Courts do not (yet) deserve that level of contempt. We should be cautious in our criticism not to do more damage than is warranted to the last credible organ of government.

But that should not insulate them from criticism when they get it wrong. Like many, I thought that the judgment seemed suspect, but I have read it before commenting. The dissenting opinion (it was decided 3 to 2) seems stronger to me (citing sources on the legislative intent ignored by the majority). But both sides seem to have grappled earnestly with it.

The problem is not judicial activism. It was not clear-cut: both the Court of Appeal and the Supreme Court were split decisions. Likewise the case law was finely balanced. The Norwegian Supreme Court just came to the same conclusion as ours. But other cases and the lower courts supported the minority view.

The problems are (a) the extent and opacity of legislation and information to be considered by the courts, and (b) the lawfare that this enables.

The key legislation was the EIA Directive of 2011 and its amendment of 2014, transposed into UK Law by the Town & Country Planning (EIA) Regulations of 2017.

Brexit made little difference. Lady Rose (one of the SC judges) has explained how little courts will deviate from their former approach post-Brexit. The opportunity of Brexit was not to replicate EU prescription in UK law, but to remove swathes of it. That is not happening enough.

The differences were over the interpretation of ‘indirect emissions from the project’, given that the oil would go through other processes before being burnt ‘inevitably’. Really? Still, the accuracy of this generalisation need not detain us, as it was not in dispute in the diverging decisions.

The Directive had left wide scope to judge whether combustion of the refined oil did or did not fall under this term. So much for codification reducing confusion.

Without acknowledgment, what was at stake was supply-side climate policy. The traditional approach to decarbonisation is demand-side: mechanisms to reduce demand for fossil fuels. This should be sufficient. If demand falls, extra supply capacity means stranded assets, not extra emissions.

Supply-side policy has been gaining a little traction since 2014, but demand-side remains the basis of most national policy. Supply-side is supposed to work by creating a shortage, which raises prices, which reduces demand. That is an essentially political decision.

A switch from demand-side to supply-side policy can have significant consequences for welfare and security. The UK government considered the supply-side before resuming North Sea licencing, and decided to stick with demand-side policy. So how did we end up with a supply-side decision?

The UN Environmental Program is how. Its Production Gap reports were a key source for the majority decision of the Supreme Court. The 2019 report is cited early and alone as the reason to believe that more supply inevitably leads to more emissions.

Prima facie, it is reasonable to view the UN as authoritative. But the cited section of the UNEP 2019 Report relies on a single study for a suspect elasticity figure: Erickson et al (2018), ‘Limiting fossil fuel production as the next big step in climate policy’. Nature Climate Change, 8, 1037–104. (Link)

That name Erickson keeps coming up in the UNEP report citations. The report authors had such regard for him because he was one of them. But there's nothing wrong with a leading authority (a) co-authoring a UN report & (b) citing his own research in evidence. He is a leading authority, right?

Peter Erickson (cited by the Supreme Court on an economic question) has a BA in geology. He is an affiliated researcher at the Stockholm Environment Institute, an environmental non-profit, which promotes draconian climate action, and which is funded by the Swedish government.

Despite Erickson's lack of relevant qualifications, he has co-authored a series of papers promoting supply-side climate policy. From the start, he was clear that his motivation was that demand-side measures were not going fast enough. He is welcome to his opinion, but this is activist lobbying, not objective expertise.

You would hope that the judges would have considered whether Erickson was a definitive source. Had they looked further, they would have found that in contrast to the geologist, economics professors, such as Professors Tombe and Lipsey, find the issue less clear-cut. Perhaps they are wrong, but should the court not at least weigh their views too?

So, UNEP invites activists to co-author its reports, who cite their own research as supposedly authoritative. Judges see this as definitive evidence that permitting fossil-fuel extraction inevitably increases total emissions, and thus ‘downstream’ emissions must be in an extraction EIA. The UK ends up with a bureaucratic burden against government policy and intent.

Robert Colville of the Center for Policy Studies, in a great thread on X and an associated article in The Times, calls these influences on legal decisions ‘meta-laws’. There are lots of them, and they have many sources. Colvile focuses on the Office for Environmental Protection. I focus on UNEP. We could both also have talked about the Climate Change Act and The Paris Climate Agreement.

In UK law, Parliament is sovereign. although until Brexit, that statement was somewhat caveated. Nor is that sovereignty subject to constitutional constraints, as it is in the USA (see Bingham's The Rule of Law). In other words, a government that wanted to could legislate to limit the force of the meta-laws. The sad reality of Conservative governments since 2016 is that they have not done so. Hopelessly torn between irreconcilable factions, they have found it more convenient to say that say that quangos and meta-laws mean it is beyond their control

When you vote on 4 July, an important consideration should be which candidate will best resist these forces.