Climate Justice

26 Nov 2025, by Miriam Allena

Courts are joining the fight against climate change, extending impact assessments to include both distant and future emissions. But while Europe is pushing for courts to have an active role, the US Supreme Court is ruling in favor of the centrality of politics in environmental governance

Before authorizing a project that could have a significant impact on the environment, a government must follow a series of procedural steps that analyze and evaluate the resulting environmental effects. This is the Environmental Impact Assessment (EIA), a transparent and participatory process that involves citizens and stakeholders, and considers possible alternatives and measures to reduce or offset negative impacts. First introduced in 1969 in the United States by the National Environmental Policy Act (NEPA), EIA has spread to many countries, including the European Union, where the first relevant directive dates back to 1985.

In recent years, the EIA has also taken an increasingly strategic role in the fight against climate change: many are now arguing that impact evaluations must not be limited to local context and the immediate effects of a project, but must also evaluate the long-term and global-scale climate consequences generated throughout the entire lifecycle of the project.

In the European context, two recent decisions have caused considerable uproar: one by the British Supreme Court (Finch v. Surrey, 20 June 2024) and the other by the EFTA Court (Case E-18/24, 21 May 2025), which have maintained that in oilfield development projects the EIA must also include downstream emissions, i.e. those resulting from the refining of oil and its final use as fuel in other processes. The Courts' argument is that the oil refining does not break the causal link between extraction and the subsequent production of emissions because, once extracted, it is virtually certain that the carbon contained in the oil will be released into the atmosphere in the form of CO₂. For this reason, the EIA must also consider these downstream emissions generated by third parties that are potentially distant in time and space from the plant facility subject to the impact assessment. The case of oil is very different from, for example, that of a steel plant producing metals going into the manufacturing of automobiles: in the latter case, it would be more difficult to argue, for example, that emissions generated by cars in circulation are directly linked to the metalworking production process. The fact remains that the rulings of the British Supreme Court and the EFTA Court are groundbreaking and involve the resolution of highly complex legal and technical issues.

This emerging jurisprudence deserves attention for three reasons. First, because the scope of the EIA is being significantly expanded on the basis of a regulatory framework that is objectively ambiguous and open to different interpretations, and this confirms the European Courts' ability to play an active role in the ecological transition by interpreting existing legal instruments in (sometimes very) evolutionary ways.

Secondly, because its application to the climate context demonstrates — should there be any need — that modules of procedure have substantial implications: although an EIA does not directly dictate the approval or rejection of a project, in practice it can strongly influence the outcome.

Thirdly, because while in Europe we are witnessing a broadening of the scope of the EIA through courts, the opposite trend is observed in the United States. The US Supreme Court, in the very recent case Seven County Infrastructure Coalition v. Eagle County (May 2025), concerning the construction and operation of a railway line to facilitate the transport of oil from Utah to refineries in Louisiana, Texas and other states, ruled against the related EIA having to include the indirect environmental impacts resulting, upstream, from increased oil drilling in Utah or, downstream, from additional refining of crude oil at destination sites.

Regardless of the individual solutions adopted, the recent decision by the US Supreme Court — although the case not entirely comparable to the ones considered by European courts — is striking for one fundamental aspect: the explicit affirmation of the central role of politics and democratic processes in defining climate governance. It is a clear message, which invites reflection on the ever-slippery boundary between law and politics (and between jurisdiction and administration).