The Surrey oil drilling case reflects the growing influence of climate litigation
Standing outside the High Court on Wednesday 21 June, Sarah Finch discussed the start of the hearing, which could have major implications for fossil fuel extraction in the UK. Finch, who chairs the Weald Action Group, challenged Surrey County Council’s decision to grant planning permission for an oil drilling project that could produce up to 3 million tonnes of crude oil following the expansion of the Horse Hill oil field.
The legal challenge concerns the interpretation of planning regulations. If the project is likely to have a significant impact on the environment, an environmental impact assessment is required as part of the building permit application. The environmental impact assessment for the expansion of the Horse Hill oil field considered the direct environmental impact of the drilling operations.
However, Finch argued that this assessment also had to consider future emissions from burning the extracted oil, known as downstream effects. For 3 million tons of crude oil, the subsequent exposure was estimated to be about 10 million tons of CO2. For comparison, this is equivalent to the average annual carbon footprint of almost 2 million UK residents.
Given the potentially far-reaching implications of the case, it has attracted the attention of both environmental companies and organizations in the fossil fuel industry. In some cases, on judicial review, courts may allow “intervenors” to present evidence in favor of either party if they are relevant to the case. Three environmental groups intervened in support of the statement. West Cumbria Mining, which recently received planning permission for a controversial mine in north-west England, has intervened, disputing the claims.
The case, which addresses environmental issues through strategic litigation, reflects a global movement that has grown exponentially in recent years. LSE’s Grantham Research Institute for Climate Change and the Environment reported in 2022 that the number of climate lawsuits has doubled since 2015. The report also found that more than 50% of climate lawsuits filed outside the US resulted in an outcome that was considered favorable to climate action.
The increasing volume and effectiveness of these cases makes it impossible for corporations to ignore climate lawsuits. The risk of climate-related litigation is now a very real factor for businesses in a wide variety of sectors. With uncertainty surrounding which way the courts will go in many climate cases, energy companies must weigh the risks of continued dependence on fossil fuels.
Organizers of court cases also note growth in this area. Funders are third-party organizations that provide legal funding for claims in exchange for a percentage of the financial award if successful. New funder Aristata Capital recently raised £30m to fund human rights and environmental litigation. An example of the impact of funding on climate action was the 2022 settlement of a lawsuit funded by Harbor Litigation. Energy company PTTEP Australasia has paid out more than £100m to around 15,000 Indonesian farmers after an oil spill caused irreparable damage to their crops.
In addition, the growing number of cases initiated by non-profit organizations also directly challenges public policy. In 2019, the non-profit group Urgenda sought a ruling from the Dutch Supreme Court that the country’s plans to combat emissions were inadequate. In 2020, environmentalists won similar enhanced commitments at Germany’s constitutional court, and last year the High Court ruled in favor of Client Earth, finding the UK government’s net zero strategy insufficient.
Experts have drawn parallels with the approach taken to fight the tobacco industry in the mid-to-late 20th century: a damning scientific consensus, powerful corporate lobby groups and a legal landscape shifting in favor of the companies involved. Along with academic research and political campaigning, lawsuits played a central role in the increasingly restrictive legal framework surrounding the tobacco industry. In America, the General Agreement on Tobacco Settlement led to the dissolution of several powerful groups in the tobacco industry, along with financial losses.
Clearly, courtrooms can play an equally central role in the fight against climate change. Campaign members have already achieved successful results, securing higher commitments from both government agencies and private organizations. Perhaps the most significant result was achieved in The Hague in 2021. The court ordered Shell, the world’s fourth largest energy company, to reduce its global emissions by 45% by 2030. This included not only the emissions from drilling, but also the consequences of the consequences of its production.
Although on a smaller scale, many of the same arguments are at the heart of the Surrey oil case before the Supreme Court last week. The case reflects a growing number of climate campaign supporters directly challenging decisions they see as unacceptable. As with many other climate cases before the international courts, campaigners and businesses alike will be closely watching the decision, which could have key implications for UK environmental law.
