Round-up: Climate related judicial reviews in the UK

Introduction

A number of judicial review cases, challenging the decision-making of different public bodies, have been brought by climate campaigners over the last decade. Use of judicial review has had varying levels of success in that period, underlining the limitations of such challenges: judicial review is a constitutional tool whose purpose is to ensure that public bodies make decisions lawfully, not one to scrutinise or overturn policies or a way to substitute political decision-making with the court’s assessment of the claimant’s views.  The Administrative Court (Admin Court), which decides most judicial review claims (in the first instance) in England and Wales, applies public law principles and decides cases based on the lawfulness of the decision-making process, as opposed to yielding to wider political pressures or adjudicating on the merits of any particular decision.

In 2023, the trend of using judicial review to challenge climate policies and decisions continues. In particular, several challenges have been brought over the past year in relation to the Government’s obligations under the Paris Agreement. New challenges are being brought against the opening of a coal mine in Cumbria and (again) against the Government’s Net Zero Strategy.

Judicial review across the UK will likely be increasingly used in an attempt to influence government action as the effects of climate change are felt more tangibly by all.

 

The Paris Agreement

The Paris Agreement was adopted at COP21 in December 2015 with the long-term goal of keeping the rise in mean global temperature below 2°C above pre-industrial levels.¹ The Agreement allows countries to determine their own National Determined Contributions (NDCs) with the goal of halving global greenhouse gas emissions by 2030. The UK’s Climate Change Act 2008 (CCA 2008) was amended in 2019 to update the statutory target for carbon emissions from 80% to a 100% reduction compared to the 1990 baseline by 2050.

 

The Paris Agreement and Export Finance

Friends of the Earth and UKEF – the first instance decision

We reported in our eighth edition on the claim brought by Friends of the Earth against the UK Export Finance (UKEF)’s decision to provide up to USD1.15bn export finance to a liquified natural gas project in Mozambique (the Project). Friends of the Earth unsuccessfully challenged the compatibility of the decision with the UK’s commitments under the Paris Agreement, having argued that UKEF failed to give proper consideration to the climate impact of the Project.

Article 2(1)(c) of the Paris Agreement (the source of the commitments in question in this case) calls on governments to ‘make financial flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development’ to support the Agreement’s adaptation and mitigation goals, including limiting global warming to 1.5°C above pre-industrial levels.

As we reported, the Admin Court agreed that the Government’s view (that supporting the Project was in alignment with both the UK and Mozambique’s obligations under the Paris Agreement) was, at least, a tenable view. In order for UKEF to demonstrate compliance with Article 2(1)(c) of the Paris Agreement, it had to demonstrate that funding the Project was consistent with a pathway towards limiting global warming to well below 2°C and pursuing efforts to 1.5°C. The broad wording of Article 2(1)(c) affords UKEF discretion in how it does so.

The Admin Court was split on the question of whether or not the UKEF had discharged its duty of enquiry in relation to calculating the Scope 3 emissions impact of the Project, as required by the Paris Agreement.

The Appeal

Friends of the Earth appealed this decision to the Court of Appeal, which heard the case in January 2023². This time, the Court of Appeal was unanimous in dismissing the Friends of the Earth’s arguments and finding in favour of the Government on all three grounds:

1. The Court of Appeal considered the Paris Agreement and its status in English law. It concluded that the Agreement is an unincorporated international treaty and does not give rise to domestic legal obligations. On this basis, where the Government had decided to take into account unincorporated international law, as it had done here, the courts could only review this decision to see if the decision-maker’s view as to what that law requires was ‘tenable’ or not, not whether the decision-maker’s view was correct.
2. In this case, the Court of Appeal agreed with the Admin Court that the Government’s view (that Article 2(1)(c) did not prohibit the provision of export finance to the Project) was a tenable one.
3. The Court of Appeal held that a failure by the relevant decision-makers to obtain a quantitative rather than qualitative estimate of the ‘Scope 3’ emissions of the project was not a breach of their duties to make reasonable enquiries.

What’s next?

The Supreme Court has refused permission to appeal.

The Court of Appeal’s decision suggests that courts will likely only intervene in limited circumstances when a decision is challenged on the basis of the Paris Agreement – an unincorporated treaty that does not give rise to domestic legal obligations. The Court of Appeal noted that the Paris Agreement was only one of a range of factors to which the Government had been entitled to have regard to. Provided that it was tenable for the Government to reach the view that funding the Project was aligned with the UK’s obligations under the Paris Agreement, the Court could not hold that it had made an error of law. 

Whilst the claimants were ultimately unsuccessful, this case is nevertheless part of a growing trend in climate litigation that seeks to look behind and challenge investment in fossil fuel projects, in both the public and private sectors.

 

The Paris Agreement and Carbon Budgets

Together Against Sizewell

Also in 2023, the Planning Court within the Admin Court heard a judicial review challenge brought by campaign group Together Against Sizewell C Limited, against the decision of the then Secretary of State for Business, Energy and Industrial Strategy (SSBEIS, now the Secretary of State for Energy Security and Net Zero (SSDESNZ)) to grant development consent to NNC Generation Company Limited (SZC) for a new nuclear power station³ 

When the Panel of Planning Inspectors reported to the SSBEIS in February 2022, they stated that they would have recommended granting consent but for one issue: the source of a permanent supply of potable water for the power station had not yet been identified and the cumulative environmental impacts of Sizewell C and that supply should be assessed before determining the application for consent. SSBEIS then asked for more information from SZC on solutions for the water supply issue. Having been satisfied with the explanation given, development consent was granted.

The challenge

The Claimant, Together Against Sizewell, challenged the development consent decision on seven grounds. Three of the grounds related to the alleged breach of the Conservation of Habitats and Species Regulations 2017 (the Habitats Regulations), whilst three other grounds related to the manner in which SSBEIS had made or communicated the decision ([alleged failure to give reasons, allegedly taking into account irrelevant considerations and acting irrationally). The final ground related to the Paris Agreement: the Claimant argued that there was no evidential basis upon which the Government could conclude that greenhouse gas emissions from the operation of Sizewell C would not significantly affect the UK’s ability to meet its climate change targets and obligations.

The decision of the High Court

The Court held that none of these seven grounds were arguable in this case. Permission to bring a judicial review challenge was therefore refused. In relation to the Paris Agreement, the Court found that there was, in fact, ample quantitative material to support the conclusions of the Panel and the SSBEIS.

What’s next?

The judicial review was therefore unsuccessful, indicating that regardless of the merits of the planning decision, the decision had been taken by the Government in a way which was lawful and therefore immune from challenge on the grounds put forward by Together Against Sizewell.

Specifically in relation to ground 4, for which the Claimant argued that the Government had failed to consider alternative solutions to the power station as it was required to under the Habitats Regulations, the Court considered that this was an “illegitimate attempt to rewrite the Government's policy aims” and that it was not the role of a claimant or of a court to rewrite Government policy or airbrush the objectives of that policy. This highlights the courts’ opposition to perceived attempts to challenge the merits of government policy through the means of judicial review.

In September 2023, the Court of Appeal granted Together Against Sizewell permission to appeal in relation to arguments around the need for a water supply, and it is reported the judge noted the public interest element surrounding the development.

 

Net Zero Strategy

The challenge

In 2022, environment campaigners (including Friends of the Earth and Client Earth) brought a judicial review challenging the lawfulness of the UK Government’s Net Zero Strategy (NZS).⁴ The NZS had been laid before Parliament on 19 October 2021 by the then-SSBEIS, the Defendant in these proceedings.

The NZS had been published in connection with section 14 of the Climate Change Act 2008 (CCA 2008), which requires the Secretary of State to report on proposals and policies for meeting carbon budgets. Section 1 of the CCA 2008 contains the net zero target, under which the Secretary of State is obliged to ensure that the net UK carbon account for 2050 is at least 100% lower than the baseline in 1990 for CO2 and other greenhouse gases. This target was inserted into the CCA 2008 in response to the Paris Agreement.

The decision

The Claimants raised four grounds. The High Court considered that the SSBEIS had acted lawfully in respect of two of them:

1. The Secretary of State was not required under section 13 of the CCA 2008 to make only a quantitative assessment of the impact of measures on reducing emissions. The Claimants had argued that the Defendant was not permitted to use a qualitative judgment to overcome a shortfall presented by a quantitative analysis. The Court dismissed this, stating that it was for Parliament to act to change the legislation, if it considered appropriate, rather than a question for the courts.
2. The Claimants’ arguments that the SSBEIS had breached section 3 of the Human Rights Act 1998 because of an incompatibility with human rights obligations, including the Article 8 right to private and family life, was dismissed for going “beyond permissible incremental development of clear and constant Strasbourg case law.”

However, the Claimants’ challenge was successful in relation to two remaining arguments:

1. The briefing materials put before the SSBEIS before approving the NZS were held to be insufficient. The Court held that, as a result, the SSBEIS did not take into account “obviously material” considerations, and had not therefore met his statutory duties under section 13 of the CCA 2008.
2. The NZS did not fully comply with Section 14 of the CCA 2008 because it did not include the information and detail required to comply with that section.

The Court stressed that, although the SSBEIS is primarily responsible to Parliament, the Court will step in and look at a decision made, in this case the contents of the NZS, where there are concerns that Parliament was not provided with the information it needed to perform its scrutiny function. 

Why did this challenge succeed?

As discussed above in relation to the Together Against Sizewell case, it is generally not the role of the Court to scrutinise the content or merits of government policy. That remains the case even where the Court does step in to find that a decision has been made unlawfully. In the NZS case, the Court did not look at the merits or demerits of the Government’s policy,  instead considering the mechanics of its decision-making and how it was presented. In this case, a failure to consider what the Court determined to be “obviously material” matters was found to be irrational. In other words, no sensible decision-maker could have taken the decision without regard to such matters.

Further, where there is a requirement to provide Parliament with a report setting out proposals and policies, the report must be detailed enough to allow for Parliamentary scrutiny and to show how any statutory objectives or obligations, in this case targets, will be met. 

As a result of the court's decision, the Government was given until March 2023 to lay a new report before Parliament with a greater level of detail on how the net zero target is to be met.

Next steps

The Government did not appeal this decision and, in March 2023, the SSDESNZ published the Carbon Budget Delivery Plan, by way of compliance with the order made by the Court.

The Claimants recently announced that they are bringing further judicial review proceedings against this latest plan, on the grounds that it still does not comply with the CCA 2008.

 

Ultra-Low Emissions Zone

In a judicial review⁵ challenge brought by five local authorities against the Mayor of London over the expansion of the Ultra-Low Emissions Zone (ULEZ), the Claimants argued that:

1. the extension of ULEZ was not consistent with the Mayor’s powers under the Greater London Authority Act 1999 (the 1999 Act);
2. the consultation on the proposed extension did not provide sufficient and/or sufficiently clear information; and
3. the Mayor’s decision on the car and motorcycle scrappage scheme grant payment to Transport for London (TfL, an interested party in the case) and associated consultation were unlawful.

 

All three grounds were rejected by the Admin Court in a relatively short judgment which stated that the “mayor’s decision […] is consistent with his powers”. The consultation on the scrappage scheme “might be described as superficial” but, according to the Court, was ultimately lawful as it provided sufficiently clear information to enable informed responses from the public.

The Court also found that the Mayor had sufficient information to rationally rely on when making the decision in relation to the scrappage scheme mitigation. The Court noted that there had been no requirement in the 1999 Act to make provision for any adverse impact of ULEZ and therefore the Mayor’s decision to adopt mitigation measures were a matter of policy, for the Mayor’s judgement.  In these circumstances involving policy judgements rather than performance of statutory obligations, the legal principles applicable allow for a wide margin of discretion in favour of the decision maker.

 

What to expect in the future

In relation to climate and the environment, judicial reviews based on the process or procedure of decision-making and grounded in established principles of public law are, naturally, more likely to succeed than those which challenge the decision itself. The Admin Court generally seeks to avoid getting involved in the political debates around climate change and infrastructure projects. While arguments that enable a judge to make a finding of unlawfulness on procedural or technical grounds are perhaps more likely to be successful, they will not necessarily result in the remedy or outcome that claimants are hoping for.  

 

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¹ See the full text of the Paris Agreement here.
² Friends of the Earth Limited, R (on the application of) v The Secretary of State for International Trade/UK Export Finance (UKEF) & Anor [2023] EWCA Civ 14
³ R (Together Against Sizewell C Limited) v Secretary of State for Energy Security and Net Zero [2023] EWHC 1526 (Admin)
⁴ R (Friends of the Earth) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841 (Admin)
⁵ R (on the application of London Borough of Hillingdon and others) v The Mayor of London [2023] EWHC 1972 (Admin).