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R (oao Friends of the Earth et al) v Secretary of State for Business Energy and Industrial Strategy (Net Zero Challenge)

Jurisdiction: High Court of Justice, England and Wales


Principle law(s): Climate Change Act


Side A: R (oao Friends of the Earth) (Ngo)


Side B: Secretary of State for Business Energy and Industrial Strategy (Government)


Core objectives: Whether the SoS’s adoption of the Net Zero Strategy did not discharge his duties under the Climate Change Act 2008, and whether the adoption of the Heat and Buildings Strategy has meant that the SoS has breached the Equality Act 2010. In relation to ClientEarth’s and the Good Law Project’s claims: whether the SoS’s adoption of the Net Zero Strategy did not discharge his duties under the Climate Change Act 2008, and whether these duties had been interpreted compatibly with human rights obligations.


Summary
On October 19, 2021, the Secretary of State for Business Energy and Industrial Strategy (Kwasi Kwarteng; the “SoS”) adopted the Net Zero Strategy (NZS) and the Heat and Buildings Strategy (HBS). The NZS is the Government’s economy-wide decarbonization strategy, and the HBS is the specific strategy for decarbonizing heating and homes. On January 12, 2022, Friends of the Earth England Wales and Northern Ireland (“FoE”) filed a claim for judicial review against the SoS, in relation to the NZS and the HBS. FoE argues that both strategies were unlawfully adopted.

In relation to the NZS, FoE argues that the SoS breached sections 13 and 14 of the Climate Change Act 2008 (“CCA”). The CCA was the first piece of legislation anywhere in the world to set domestically enforceable carbon reduction targets. Sections 13 and 14 of the CCA require the SoS to produce policies which will enable upcoming carbon budgets set under the CCA to be met. FoE submits that the SoS has not complied with these duties, because whilst the NZS contains targets for carbon emissions reduction, it does not quantify what impact its policies will have in reducing emissions, or the timescales for these to happen. FoE also argues that the SoS breached section 149 of the Equality Act 2010; the public sector equality duty. This is because the SoS has not assessed what impact the strategy will have on people with protected characteristics, such as disabled people, people of color and older people.

The environmental legal charity ClientEarth and the NGO the Good Law Project filed separate judicial review challenges to the NZS in the week commencing January 17, 2022, also in relation to the CCA.

FoE, along with ClientEarth and Good Law Project, received permission to proceed on all grounds on 1 March 2022. The court found that the cases all had a realistic prospects of success, and merited a full substantive hearing. The grounds from all organizations will be heard together. 

Following legal challenges brought by (1) Friends of the Earth, (2) ClientEarth and (3) Good Law Project and Joanna Wheatley, the High Court ruled on 18 July 18, 2022 that the Secretary of State for Business, Energy and Industrial Strategy (Kwasi Kwarteng; the “SoS”) breached s.13 and s.14 of the Climate Change Act 2008 (“CCA”) when he adopted the NZS on 19 October 2021. Holgate J found that the NZS had been unlawfully adopted as:
1. The Minister had legally insufficient information before him to adopt the NZS (breach of s.13 of the CCA). For example, whilst he had been informed that the quantified policies in the NZS added up to c.95% of the emissions reductions needed to meet the sixth carbon budget (CB6; set under the CCA, and covering the period 2033-2037), he had not been provided with the breakdown of the contributions of the individual policies, and it had not been explained to him how the 5% shortfall would be made up. This mean that he was not able to properly understand the risk to the delivery of the policies in the NZS. Risk to delivery was an obviously material consideration.
2. The NZS itself lacked vital information which meant that Parliament and the public were unable to properly scrutinize it (breach of s.14 of the CCA). For example, Parliament was not aware of the 5% shortfall for meeting CB6. The NZS should have included quantified policies (i.e. setting out what their individual emissions reductions were estimated to be), in order for Parliament to be able to scrutinize risk to delivery. The judgment placed “considerable weight” on the views of the Committee on Climate Change, the independent expert body under the CCA, which had advised the Government that the NZS should include quantified policies.
GLP’s separate ground relating to the HRA was not successful; Holgate J concluded that it was too ambitious and did not accord with established principles. 

A separate claim, unrelated to the cases issued by FoE, ClientEarth and GLP’s claims was brought by two claimants, Adaeze Aghaji and Peter Garforth, against the Government’s NZS alleging that the proposals and policies set out are insufficient to meet the UK’s sixth carbon budget. The claimants filed for judicial review in late March 2022 and were granted permission to proceed on the 25 May 2022. However, the application was stayed pending the outcome of the claims brought by FoE, ClientEarth and GLP.

Case documents

Related laws and policies
  • GBR flag 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 z...

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