In its recent decision in R. v Secretary of State for Transport, the Court of Appeal ruled that the UK Government had failed to take into account the commitments it made under the 2016 Paris Agreement on climate change when assessing Heathrow's expansion plan and, as a result, it ruled that the Government's Airports National Policy Statement was unlawful. The Court's decision is part of a global trend of successful climate change litigation that shines a light on the requirement for Governments to consider their obligations under the Paris Agreement.
In June 2018, the UK Government supported Heathrow's longstanding plans to develop a third runway through the Airports National Policy Statement ("ANPS"), which had been designated by the Secretary of State for Transport ("SoS") under section 5 of the Planning Act 2008 ("Planning Act").
The Planning Act requires that policy statements: (i) explain how the infrastructure project has taken account of Government policy on climate change (section 5(8)); and (ii) demonstrate that the policy is in line with the objective of achieving sustainable development, in particular, mitigating and adapting to climate change (section 10).
Notably, around the time that the ANPS was approved, the Government-established Airports Commission had issued an 'Appraisal of Sustainability', which included a list of international policy and legislation relevant to the ANPS, but the Paris Agreement was not included. The issue before the Court was therefore whether the Government's commitment to the Paris Agreement constituted Government policy on climate change, therefore requiring the SoS to take it into account.
The Paris Agreement, adopted in December 2015, enshrines the firm commitment from 189 countries to restrict the increase in the global average temperature to well below 2°C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5°C. The UK Government ratified the Paris Agreement in November 2016. The UK also has its own domestic climate change legislation, the Climate Change Act 2008, which sets a "carbon target" for the UK to reduce its greenhouse gas emissions by 80% from their 1990 levels by 2050. In June 2019, that target was amended to carbon neutrality by 2050.
The SoS argued that the ANPS had been produced lawfully as the Climate Change Act did not provide for emissions from international aviation and the Paris Agreement did not represent 'Government policy' as it was not incorporated into domestic law. In addition, the SoS stated that it had received legal advice that not only did it not have an obligation to have regard to the Paris Agreement in formulating the ANPS, it was legally obliged not to take it into account at all.1
The Court of Appeal rejected these arguments, noting that while Section 5(8) of the Planning Act does not necessarily require the SoS to follow or act in accordance with Government policy, it is obliged to take Government policy "into account".2 Further, the Court determined that the meaning of 'Government policy' should be construed in the ordinary sense. In other words, the Court found no basis for limiting the phrase 'Government policy' to mean only the legal requirements under the Climate Change Act and that such policy must be "necessarily broader than legislation".3 Consequently, the Court found that the Government's commitment to the Paris Agreement was "clearly part of Government policy" by the time the ANPS was designated, as not only had it been ratified by Parliament, but various ministers had made statements which reiterated the Government's adherence to the Agreement.4
Accordingly, the Court found that the advice the SoS had received that it was legally obliged not to take the Paris Agreement into account at all was "a material misdirection of law".5 Indeed, the Court stated that requiring the SoS – as an organ of the executive branch of the State, namely the Crown – to "comply with what has been enacted by Parliament (in this case the obligations in section 5(8) of the Planning Act) is an entirely conventional exercise in public law".6
The Court therefore found the ANPS to be unlawful and of no legal effect, unless and until the SoS undertook a review of its designation decision in accordance with the relevant statutory provisions and the Court's judgment.7
The Court of Appeal's judgment demonstrates that international climate objectives can have major consequences for the development of infrastructure that may have long-term climate impacts. Critically, the Court has clarified that, even where its commitments to international climate change agreements have not been incorporated into domestic law, the UK Government will be required to take such commitments into account when making decisions concerning major infrastructure developments. While the Court was careful to note that its role is not to consider the merits of Government decisions, it did recognise that climate change is "a matter of profound national and international importance of great concern to the public".8 This is likely to increase the degree of scrutiny to which the Government's decision making process is subject and, as a result, it is possible that further proposed infrastructure projects could now face legal challenges if it appears the Government is not taking proper account of its climate change commitments. It also has potential implications for administrative decisions in other countries that are required to have regard to climate change policy in approving major projects or planning and environmental instruments.
The decision also demonstrates that the risks of climate change litigation continue to grow for both Governments and industry. Two recent cases illustrate this. Last year, the NSW Land and Environment Court in Australia refused planning permission for a proposed coking coalmine on its merits due in part to a finding that the emissions associated with the combustion of the coal in China was inconsistent with Australia's commitments under the Paris Agreement (see here). The Court of Appeal's judgment also comes only months after the Dutch Supreme Court ruling in Urgenda Foundation v The State of the Netherlands, which ordered the Dutch Government to cut emissions by 25% from 1990 levels by the end of 2020. Prior to the Dutch Supreme Court's ruling, which upheld the lower courts' decisions, the Urgenda case had acted as a precedent in other climate litigation claims, as it established for the first time that a Government has a duty, under the European Convention on Human Rights, to reduce its carbon emissions (see here).
1 R (on the application of Plan B Earth) -v- Secretary of State for Transport  EWCA Civ 214, paragraphs 216 to 220 and paragraph 227
2 Paragraph 223
3 Paragraph 224
4 Paragraph 228
5 Paragraph 227
6 Paragraph 230
7 Paragraph 280
8 Paragraph 277