Finch: Where Are We Now?

On 27 September 2019, Surrey County Council approved Horse Hill Developments Limited’s plans to expand an oil site in Horley, including drilling four new wells.

Under UK planning law¹ , an Environmental Impact Assessment (EIA) was required to consider the project’s environmental effects, including climate impact.  Although the Council initially suggested that emissions from burning the oil (Scope 3) should be assessed, the developer’s report only covered emissions from the development itself, i.e. construction and transport. The Council accepted this narrower scope.

Local resident Sarah Finch challenged the decision, arguing the EIA was legally inadequate for omitting downstream emissions. The High Court and Court of Appeal rejected her claim. However, on 20 June 2024, the Supreme Court ruled in her favour by a 3-2 majority and overturned the planning permission.  

The Finch Judgement

The Supreme Court’s majority judgment in Finch²  marked a potentially significant development in environmental and planning law. It ruled on the long-debated question of whether downstream greenhouse gas emissions—those resulting from the eventual combustion of oil extracted by a project—constitute “effects of” the development for the purposes of an EIA. By majority, it was held that they do (overturning the High Court and the Court of Appeal). Despite the Supreme Court’s decision, there is ongoing debate and uncertainty about how broadly the Finch ruling should apply, particularly beyond the oil and gas sector

In the High Court, Holgate J had concluded that downstream emissions could not be considered effects of a project under the EIA Regulations. The Court of Appeal took a different view, holding that it was a matter for the planning authority’s judgment whether such emissions should be assessed. The Supreme Court rejected both approaches. Lord Leggatt, writing for the majority, found that the emissions were causally connected to the project in a way that satisfied even the strictest legal tests of causation. Since it was agreed that the oil extracted would inevitably be burned, the emissions were not just foreseeable but guaranteed. This, he said, was a stronger causal link than is typically required in law. The differing judicial opinions and the nearly year-long delay in the Supreme Court’s judgment highlight the complexity of this issue.

Importantly, the judgment clarified that there is no geographical limitation on what can be considered an “effect” under the EIA regime. Emissions occurring outside the UK, or downstream in the product lifecycle, are still relevant. Lord Leggatt also emphasised that national policy on fossil fuels does not reduce the legal requirement for a comprehensive EIA, nor does it diminish the need for decision-makers to have access to detailed environmental information.

The implications of this decision can be summarised as follows. First, while the EIA process does not dictate the outcome of a planning application, it now requires a broader scope of environmental impacts to be assessed. This could result in more negative environmental effects being documented, particularly for fossil fuel and mineral extraction projects. Second, the expanded scope of EIAs may influence public discourse, equipping campaigners with more data to challenge developments, though it may also create an imbalance where positive impacts are harder to quantify.

Third, the issue of causation remains complex. The Court did not settle on a single test, leaving room for future disputes over how to assess indirect effects. Fourth, the ruling may influence national energy policy, as it raises questions about the balance between domestic production and environmental responsibility. Fifth, the judgment opens the door for positive downstream effects—such as emissions reductions from bicycle manufacturing—to be considered in EIAs.

Finally, although it appears that Finch may be applied to all projects where the development leads to likely environmental effects elsewhere or later in time, the principles from Finch will not apply if evidential causation cannot be shown. As emphasised by Lord Leggatt, 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”. The need for evidential causation could categorise a project and its likely effects as falling outside of the scope in Finch. If the causal connection between the off-site activity and the development cannot be demonstrated, it must be considered that the indirect environmental effects of such off-site activities do not need to be assessed.

The impact of Finch is explored further below.

Following Finch

The Finch case was subsequently applied in Friends of the Earth v SoS Levelling Up, Housing and Communities & others [2024] EWHC 2349 (Admin), where the High Court again confirmed that downstream emissions—this time from the combustion of coal extracted from the mine—must be assessed.

The High Court followed the Supreme Court in Finch in quashing the planning permission for a new Cumbrian coal mine. It was ruled that the SoS breached EIA requirements by concluding that the (downstream) greenhouse gas (GHG) emissions from the burning of the mined coal were not a significant likely effect of the proposed development to be taken into account.

The Whitehaven coalmine decision is notable not only as one of the first applications of Finch, but also for its independent significance. The Court’s detailed analysis of the ‘substitution issue’ illustrates the planning court’s readiness and capability to engage with complex technical evidence on climate change. It demonstrates how the judiciary assesses whether decision-makers have approached such evidence with rationality and consistency. The ‘substitution issue’ was argued by the developer. The Developer argued that if the release of GHG was an indirect effect of its development, it did not need to be considered for the purpose of EIA. The Developer argued that the coal extracted in its development would substitute coal being extracted elsewhere (the US). The developer alleged that this meant downstream emissions from its development could be considered neutral. The point was debated in detail in the judgment. The Court noted that the correct analysis is that both are significant matters, and if the substitution of US coal would be a likely effect of the proposed project, both effects had to be assessed in accordance with the EIA Regulations. The Court made it clear that the substitution of US coal was not a relevant factor which could be relied on to avoid any assessment of the issue at all and, on the facts, expressed doubt about the ability to simply ‘swap’ one for the other in any event. The judgment reinforces the ‘high bar’ which proposals will be expected to meet in order to succeed in any substitution type arguments for EIA.

Moreover, the judgment holds broader relevance for decision-makers evaluating applications for contentious fossil fuel developments, as well as for renewable energy or carbon-capture projects that may signal climate leadership. It affirms that the potential impact of a project on the UK’s international climate reputation can constitute a material planning consideration. This recognition may influence how such applications are assessed in future, particularly in light of evolving climate obligations and public scrutiny.

The issues considered in Finch have also been considered in the recent case of Greenpeace Limited & Uplift [2025] CSOH 10, where the Secretary of State’s decision to grant licences for two major new oil and gas fields in the North Sea was challenged. All parties agreed that, following Finch, downstream emissions should have been assessed as part of the EIAs required for the licence applications. However, this assessment was not carried out. The central issue before the court was whether the licences should be quashed, or whether a declaration of unlawfulness would suffice. The Court decided that the licences should be quashed and reconsidered lawfully, this time including the downstream emissions.

Although this judgment does not expand upon the principles established in Finch, it offers valuable insight into the appropriate remedies available when the legal landscape is unsettled. The Court had to decide whether to quash or issue a declaration as to a procedural EIA failing. It is notable that the Court decided it had no option but to quash, in the circumstances of the case, and remitted the case for redetermination taking into account downstream emissions. In doing so, it reflects the courts’ increasingly activist stance towards ensuring climate change impacts have been properly considered as part of EIA. As the implications of Finch continue to unfold, further rulings on climate-related matters are anticipated. This evolving jurisprudence presents potential challenges for developers, as interpretations of environmental and planning law may shift significantly while applications are still under review. The later decisions provide some early indication of how such developments could influence the decision-making process.

The most recent case of R. (on the application of Caffyn) v Shropshire Council [2025] EWHC 1947 (Admin) reinforces the importance of assessing indirect environmental effects following the Finch principles, but outside of the arena of ‘fossil fuel’ developments. In this case the Court held that the Council failed to engage in any evaluative assessment as to whether, as part of EIA, the environmental impacts of spreading digestate, which would be produced as a result of intensive livestock development, had to be quantified and taken into account. The Court held that the spreading of digestate (although a processed by-product, rather than ‘waste’) is not automatically immune from EIA scrutiny where it may contribute to environmental impacts. The Court noted that the fatal flaw in this case was not the mere omission of data, but the complete lack of evaluative reasoning by the local planning authority as to why this was scoped out. This highlights the concerns of the High Court in Finch itself, as it is now increasingly the case that both developers and local planning authorities have to undertake substantial work (increasing costs and timescales for determination) in order to ‘prove a negative’ and justify why a particular effect has not been assessed as part of EIA.

Environmental Statements and Climate Change as a Key Consideration

Climate change litigation has been increasing for some time and while this trend was gaining momentum prior to Finch, the UK Supreme Court’s decision significantly accelerated its prominence. As observed in the Greenpeace judgment, “the effect of the burning of fossil fuels on climate change and the lives of individual persons is now well recognised in law". This underscores the increasing necessity of incorporating likely significant climate impacts into the EIA process.

On 19 June 2025, the Department for Energy Security and Net Zero (DESNZ) published supplementary guidance for EIAs on assessing the effects of downstream scope 3 emissions on climate from offshore oil and gas projects. The guidance sets out expectations for the content of environmental statements. It suggests that scope 3 emissions must be assessed on the presumption that all extracted hydrocarbons will be combusted, and substitution cannot be used to exclude scope 3 emissions (it may only be used to contextualise them). Further, it recommends that mitigation measures for scope 3 emissions must not be speculative.

The guidance recognises that environmental effects are to be considered on a case-by-case basis and therefore it is not intended to provide a definitive statement of the law. It acknowledges that it is not prescriptive as to the approach developers should take to assess scope 3 emissions and it accepts that alternative approaches may be possible or even preferable, especially as approaches and scientific understanding develop over time.

Whilst the guidance provides clarity and expectations for the content of environmental statements, it only relates to the oil and gas sector, and it clearly leaves scope for interpretation and therefore disagreement on a case-by-case basis. It does not resolve the broader uncertainty of Finch applying to other types of projects.

Practical challenges in scoping EIAs post Finch

A year on from Finch, developers and local planning authorities are still facing several practical challenges in applying the ruling to a wide range of developments.

Firstly, the main challenge is determining the scope and boundaries for the assessment, with the key issue being where does a decision maker draw the line in terms of where a particular project’s environmental impact ends. Finch blurred the line between direct impacts and indirect impacts. Developers and authorities now need to be seen to consider the life-cycle emissions and potentially far-reaching downstream impacts, even if such impacts occur globally or outside their control. Notwithstanding this requirement there will undoubtedly be arguments as to whether any such impacts are clearly and evidentially linked to the project i.e. the ‘fault lines’ of future disputes are likely to be drawn over the issue of causation.

Secondly, calculating downstream emissions accurately is complex and data-intensive. Many barriers can arise in trying to calculate likely impacts. For instance, there is often a lack of certainty at application stage over how and where a product may be used. This raises a risk of inconsistency or legal challenge over the methodology used.

Thirdly, it may be that both local planning authorities and developer’s feel they need to ‘over-disclose’ information to mitigate risk of challenge through the courts. This will lead to unnecessarily burdensome EIAs, complex reports to planning committee and additional costs/delays for all parties, potentially undermining the current Government’s growth agenda as extended EIA processes further delay decision making.

It is important to remember that Finch related to fossil fuel extraction. Although the Finch principles could extend to other sectors e.g. road infrastructure (vehicle emissions) and agricultural projects (methane release from livestock), there are robust arguments for limiting its scope and application to other sectors. Approaching every EIA project by determining that the scope of EIA must now include consideration of entire supply chains or user-end impacts appears to be going further than the Supreme Court anticipated in Finch.  

Conclusion

The Finch ruling has significantly reshaped the legal landscape for Environmental Impact Assessments, confirming that downstream emissions must be considered where there is a sufficiently strong causal link between the development and the downstream emission in question. Its influence is already evident in subsequent cases. Developers and local planning authorities face growing uncertainty, with EIAs now requiring broader and more detailed assessments. The question of just where to stop assessments, and the seemingly over-application of Finch is resulting in a quagmire, slowing down decision making at all levels. Downstream effects of fossil fuels may be patently obvious, there are many instances of theoretical ‘downstream effect, which should properly be considered well beyond the scope of Finch. Unfortunately, due to increased litigation, it is likely that developers will be advised to proceed on the basis ‘proving a negative’ in order to minimise the risk of their planning permissions being challenged through the Courts. This is an area where additional Government intervention by way of clear and precise statutory provisions would be most welcome. 

1. Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017/571), which implemented EU Directive 2011/92/EU (as amended).
2. Finch v Surrey County Council ([2024] UKSC 20)