Following the Finch[1] decision in June this year, last week the Offshore Petroleum Regulator for Environment and Decommissioning (OPRED) launched a consultation on draft guidance on scope 3 emissions requirements in Environmental Impact Assessments (EIAs).

Consultation responses are open until 8 January 2025.

What does Finch mean for offshore EIAs?

In the Finch case, the Supreme Court held that downstream (Scope 3) emissions from the use of extracted oil needed to be taken into consideration in the EIA relating to the development of an oil extraction facility. The court found the initial EIA had not taken these into consideration, and the planning decision was therefore unlawful. More detail on the Finch case is available here.

Although the Finch case related to an onshore oil extraction project, the court’s interpretation relates to EU Directive 92/11/EU which was implemented for offshore EIAs under the Offshore EIA Regulations 2020. Scope 3 emissions should therefore be considered in offshore EIAs, and OPRED’s guidance is intended to help those preparing offshore EIAs to understand their new obligations.

What does the draft guidance say?

The draft guidance covers:

• How to define the environmental baseline for the calculation of scope 3 emissions
• Relevant scope 3 emissions for inclusion in the EIA and requirements to include methodology
• How EIAs should assess the likely significant effects of scope 3 emissions on climate
• How cumulative effects of other nearby projects should be taken into consideration
• Whether there are reasonable alternatives, and how these were considered
• How mitigation measures should be identified and implemented
• A requirement to consider relevant environmental protection objectives.

The impact of Finch, as well as ongoing litigation involving UKCS oilfield developments, makes this a dynamic area. The judicial review of the Rosebank and Jackdaw oilfields is due to be heard by the Court of Session in Edinburgh from 12 - 16 November. The judicial review relates to the same point as Finch – whether scope 3 emissions should have been considered in granting licences to develop the two fields. The UK Government has confirmed that it will not be opposing the judicial review, and the outcome is uncertain. It is unlikely that the position will be clear next Friday, as it is more likely judgment will be reserved and issued in the following weeks or months, although the considerable industry and public interest in the case may result in a shorter timescale.

The government guidance, once finalised and introduced, should assist those who have to comply. Meantime, the Finch decision cannot be ignored. Our energy specialists continue to monitor Finch, the progress of the EIA guidance and the judicial review.

If you have any queries or concerns about the impact of Finch or the EIA guidance, do not hesitate to get in touch with your usual contact, or a member of the Burness Paull energy team.

[1] (R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council and others)

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