Supreme Court Decision – Dr Rachel Connor

The Supreme Court Decision of 20th June, has had reverberations around the whole oil industry.
But its worth watching the actual short video of the judgement :
https://www.supremecourt.uk/…/uksc-2022-0064/judgment.html

This has huge implications for s.36 windfarm applications and any other development which is subject to EIA Regulations.

In essence, his Lordship stated that the wording of EIA Regs requires that EIA’s conducted by applicants MUST be inclusive and comprehensive and open for public consultation before a planning Decision is made by an authority. So if a developer has not provided environmental information,(including on direct and indirect emissions which may affect climate change) in their EIA, it would not be lawful to provide this information post consent, contigent upon a planning condition, because this would exclude public consultation.

Likewise, hydrogen is recognised to be an indirect potent greenhouse gas -much more so than CO2.
In April 2022, the UK government’s Department of Business, Energy and Industrial Strategy (BEIS) produced a report showing that hydrogen is twice as powerful a greenhouse gas as previously thought.The 75-page report, Atmospheric Implications of Increased Hydrogen Use, explained that H2 is an indirect greenhouse gas, which reacts with other greenhouse gases in the atmosphere to increase their global warming potential (GWP).

There are several live planning applications for ‘green’ hydrogen production in Scotland, including one at Whitelee, which has nothing at all in the EIA about the recognised climate change impacts of use of that hydrogen as a fuel and the escape of hydrogen into the atmosphere. It would seem after this ruling that that omission is unlawful.

The same might be extrapolated for other omissions of required environmental information in s.36 and other onshore wind applications subject to EIA regulations. I think this ruling could be very helpful- EIA Regulation wording requires a broad range of environmental impacts to be considered on air, water and soil.
It will be worth referring to this judgement if EIA’s submitted by developers are inadequate!