United Kingdom

Plan B Earth v. Secretary of State for Transport

Jurisdiction: United Kingdom


Principle law(s): Climate Change Act


Side A: Plan B Earth (Ngo)


Side B: Secretary of Transport (Government)


Core objectives:

Whether an approval to expand Heathrow International Airport is illegal due to inadequate consideration of climate change commitments under the Paris Agreement and advice to change national climate targets


Summary
Friends of the Earth and Plan B Earth, a British nonprofit with the mission to realize the goals of the Paris Agreement on climate change, filed suit against the Secretary of State for Transport Chris Grayling ("the Secretary") alleging inadequate consideration of climate change impacts in regards to the expansion of Heathrow International Airport. (Additional claimants participated in the suit, but these two groups took lead on the climate-related claims.) Claimants argued that the Secretary's national policy statement supporting the expansion of Heathrow Airport violated the Planning Act 2008 ("the 2008 Act") and the Human Rights Act 1998. The case went before the High Court of Justice Queen's Bench Division Administrative Court which refused all six climate change-related claims filed by the two environmental organizations. 

Environmental Claimants argued that since the 2008 Act requires the Secretary to pursue the objective of sustainable development and consider the desirability of mitigating and adapting to climate change, it further gives rise to implicit obligations to consider the advice of the Committee on Climate Change ("the CCC"), the government's obligations under the Paris Agreement and commitment to review its national climate change targets in light of the Paris Agreement. Claimants maintained that the Secretary violated these implicit obligations by supporting the airport expansion without adequate consideration of the insufficiency of the current UK 2050 climate target ("2050 Target"), the UK's commitments under the Paris Agreement, the CCC's recommendations to review the 2050 Target, and government's recent agreement to review the 2050 Target. Accordingly, they asserted the Secretary's actions were both ultra vires and irrational. Plaintiffs additionally alleged violations of the Human Rights Act 1998. Claimants sought declaratory relief, specifically a declaration that the Secretary of State acted unlawfully in violation of section 5 of the 2008 Act. 

The court did not find that the Secretary had any obligations to consider the Paris Agreement climate targets, the science underlying those climate targets, or a more stringent potential future climate target necessary for meeting the Paris Agreement. The court was not persuaded by arguments that the 2008 Act's climate action goals could be interpreted to make obligations under the Human Rights Act of 1998 inclusive of the Paris Agreement goals. The court found that the Secretary had fulfilled his obligations to consider existing domestic climate targets and acted within his discretion. 

The Court of Appeal has granted plaintiffs the permission to appeal the lower court decision. The judge wrote that the "[i]mportance of the issues raised in these and the related proceedings is obvious." At the appeal hearing, which took place on October 21, 2019, Friends of the Earth reiterated their arguments that 1) the government was in breach of the sustainable development duty under section 10(3) of the Planning Act for not considering the Paris Agreement, the non-CO2 impacts and the long term impacts of the Airport National Policy Statement beyond 2050, and 2) the SoS acted unlawfully by omitting reference to international environmental protection objectives in the Appraisal of Sustainability as required by sch.2 of SEA regulations.

On February 27, 2020 the Court of Appeal reversed the lower court. The court concluded that the Government had made a commitment to the Paris Agreement goals a part of "Government policy" by the time the ANPS was prepared. The Secretary, as a result, needed to expressly consider and address the Paris Agreement goals during the ANPS process (but did not need to act in accordance with the Paris Agreement or reach any particular outcome). The court held that by failing to consider the Paris Agreement the Secretary violated the Planning Act and the requirement to undertake a strategic environmental assessment pursuant to EC Council Directive 2001/42/EC. The court therefore concluded that the ANPS is invalid and must be redone. The court further ruled that in completing a new ANPS, the Secretary should consider the non-carbon dioxide climate impacts of aviation and the effects of emissions beyond 2050, both of which had been omitted from the original analysis. The court did not find it necessary to quash the ANPS, but rather determined that the appropriate form of relief was a declaration that the decision to approve a new runway was unlawful and the ANPS may not have legal effect unless and until the Secretary undertakes a review of it in accordance with the Planning Act.
Case documents

Related laws and policies
  • This law implements United Kingdom legislation
    Climate Change Act

    Passed in 2008 Legislative

    The Act provides a long-term framework to improve carbon management, to help the transition to a low carbon economy, encourage investment in low carbon goods and provide an international signal. The Act establishes a legally binding target for the UK to bring all greenhouse gas emissions to net zero by 2050. It also creates 5-yearly 'carbon budgets' as a pathway to meet the long-term target. The Act has now established a legally binding target of at least an 100% cut in GHG emissions by 2050, to be achieved through action in the UK and abroad. Ministers must report on the policies implemented to meet carbon budgets and produce an annual report to Parliament on the status of UK emissions. The Committee on Climate Change (CCC) - an independent, expert body to advise the government on the level of carbon budgets and on progress in meeting these budgets - submits annual reports to Parliament on progress towards targets and budgets. The government must respond to the reports, ensuring transparency and accountability. 

    The Act sets up a carbon budgeting system that caps emissions over 5-year periods, with three budgets set at a time, to help the UK stay on track for its 2050 target. The first three carbon budgets run from 2008-2012, 2013-2017 and 2018-2022, and were set in law in May 2009. The fourth carbon budget, for 2023-2027 approved by parliament in 2011 and reviewed in 2014, puts into law a target to reduce emissions by 50% from 1990 levels by 2025 (the midpoint of the budget period). The government must report to Parliament its policies and proposals to meet the budgets and set a limit on the purchase of carbon credits for each budgetary period - for the first budgetary period, a zero limit was set in May 2009, excluding units bought by UK participants in the EU Emissions Trading System. For the second budget period, a limit of 55MtCO2e was set. 

    The Act also gives powers to introduce domestic emissions trading schemes more quickly and easily through secondary legislation - the first use has been to introduce the Carbon Reduction Commitment Energy Efficiency Scheme. The Act introduced measures on biofuels and powers to introduce pilot financial incentive schemes in England for household waste. The Act requires, by the end of 2012, the inclusion of international aviation and shipping emissions in the net carbon account, or an explanation to Parliament why not. The government announced in December 2012 that this decision would be deferred, recognising uncertainty over the international framework for reducing aviation emissions and particularly the treatment of aviation within the EU ETS. The new net zero target still excludes aviation and shipping. 

    The government must report at least every 5 years on the risks to the UK of climate change, and publish a programme setting out how these will be addressed. The first such climate change risk assessment was published in 2012. The Act also introduces powers for government to require public bodies and statutory undertakers to carry out their own risk assessment and make plans to address those risks. The Act introduces an Adaptation Sub-Committee of the Committee on Climate Change, providing advice to, and scrutiny of, the Government's adaptation work. ****** The fifth carbon budget (adopted in June 2016) has set emission reduction levels to 57% compared with 1990 levels. It covers the period between 2028-2032 and is in line with the UK's global commitments. The recommended budget and its latest progress report, the CCC (Committee on Climate Change) listed some recommendations in the form of priorities for policy development, including: 

      • Enabling mature low carbon energy sources (e.g. onshore wind) to come to market
      • Defining how energy efficiency improvements shall be financed and delivered
      • Increasing adoption of low carbon heat, which includes policies to overcoming behavioural barriers
      • Extending vehicle efficiency targets through the 2020s, coupled with policies to increase use of electric vehicles
      • In order to decarbonise effectively by 2050, the CCC has called for all new investment from 2020 onwards in power to be low carbon, excluding back-up and balancing plant. From 2035 onwards, the same will apply to all investments in transport and head.

from the Grantham Research Institute
from the Grantham Research Institute
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