Most UK climate litigation concerns challenges to the decisions of public authorities on projects with environmental effects or policies being adopted by Government that can have significant impacts on the environment.
A series of five recent decisions in the courts – all of which have rejected challenges based on climate grounds – show that the UK courts are extremely reluctant to call into question the decisions of national or local public authorities in the case of individual projects. However, as we will see, there is room for challenges to be successful in limited circumstances which we consider below.
Two recent decisions concerned approvals granted for the expansion of airports at Bristol and Manston in Kent.
The Bristol case (Bristol Airport Action Network Co-ordinating Committee v Secretary of State for Levelling Up, Housing and Communities) involved a proposed expansion of 20% capacity and approximately an additional 2 million passengers per annum. It was argued that the failure of the decision-maker properly to consider the impact of the expansion on the ability of the UK to meet national “carbon budgets” (which set out a pathway to “net zero” by 2050) rendered the decision to grant approval unlawful.
The court disagreed. Unlike air quality issues, which have a local dimension, climate impacts are a matter for national government. This decision was made by a local, rather than national authority and so did not need to be – and indeed, should not be – considered in determining whether approval should be granted.
The Manston case (R (Dawes) v. Secretary of State for Transport) involved the re-opening of an airport which had closed in 2013. The decision-maker in this case was the Secretary of State (i.e. a national, not local, authority). It was established that the re-opened airport would generate emissions equivalent to approximately 2% of UK aviation carbon allowances. This was regarded as a material adverse environmental impact which the Secretary of State had to consider when deciding whether to permit the re-opening of the airport.
In addition, the UK’s Climate Change Committee had recommended no increase in UK airport capacity. However, the Secretary of State was permitted to take into account the Government’s Jet Zero Strategy (which sets out various climate mitigating policies e.g. sustainable fuel, further aircraft efficiency etc) and in his opinion, this would allow this increase in airport capacity without compromising the pathway to net zero. This was the case even though the modelling in the Jet Zero Strategy did not take into account the re-opening of Manston Airport. The court agreed.
Another interesting recent case, which is currently before the UK Supreme Court, involved the question whether Scope 3 (or “downstream”) emissions have to be assessed when carrying out a project-related environmental impact assessment (“EIA”). In R (Finch) v Surrey County Council, the Council granted consent for 4 wells that would produce hydrocarbons for over 25 years. An EIA had to be undertaken as part of the application process. This was required to assess the direct and indirect environmental effects of the project.
The question was whether the emissions associated with the combustion of fuel made from the crude oil derived from the wells had to be considered in the EIA.
The lower court had decided that such emissions were not legally considered “indirect” emissions of the project because there were emissions not arising from the oil wells project itself but from the burning of motor car fuel which was produced by a separate unrelated process applied to the crude oil derived from wells.
On appeal it was decided that it was for the local authority to decide whether such emissions were “indirect” or not. In other words, Scope 3 (downstream) emissions may well, depending on the decision-maker in a particular case, need to be assessed as part of an EIA. This important case has now being heard by the Supreme Court and its decision is awaited.
In a similar decision it was held, in the case of R (Boswell) v Secretary of State for Transport, that although there is an obligation to consider the cumulative affects of projects on the environment as part of the EIA process, the failure to consider the cumulative effects of 3 road projects in one county was not sufficient to justify quashing a decision to grant approval for them. The degree to which cumulative effects were to be considered was a matter for the decision-maker, not the court.
By contrast, Friends of the Earth (“FoE”) were successful in their challenge to the adoption by the Government of its Airport National Policy Statement (“ANPS”), in the case of Friends of the Earth Ltd & Ors, R (on the application of) v Heathrow Airport Ltd.
In this case, FoE challenged the adoption of the ANPS (which is the principal policy document under which decisions on new airport capacity are undertaken) because it failed to take into account the Paris Agreement. The ANPS has since been amended and FoE has launched another legal challenge to its validity which will be heard in 2024.
What general themes can we take from the above string of cases, if any? The main theme that emerges is that challenges to decisions on individual projects on climate grounds are going to be difficult to run in the absence of manifest error on the part of the decision-maker. This is especially the case where the decision-maker is a local, rather than a national, authority. The (largely) unsaid judicial policy behind this has two elements. First, climate change and its effects are controversial and, as such, these issues fall into the political rather than the legal arena. The second consideration is that climate change impacts are properly a matter for national authorities because their effects are national or international rather than local. This differs from issues such as air quality which has local effects.
That said, challenges to national policies on climate change or national policies which can impact climate change and under which decisions are made on individual projects can be challenged by activists where the national authority is acting inconsistently or without due regard to climate impacts. Finally, we should say that our conclusions on this are preliminary as one of the above cases is currently being heard by the UK Supreme Court which may decide to take a more interventionist approach.