NGOs take UK Government to Court in relation to Net Zero Strategy

On 12 January 2022, two environmental NGOs announced they were filing claims in the High Court against the UK Government in relation to alleged inadequacies in its Net Zero Strategy. 

ClientEarth and Friends of the Earth have both filed judicial review applications alleging that the solutions outlined in the Net Zero Strategy are insufficient and do not demonstrate how it will achieve net zero. In their press releases regarding the claims, ClientEarth has described the Net Zero Strategy as containing “speculative and unproven technologies that risk the UK having to introduce more drastic measures in future”, whereas Friends of the Earth have described it as “woefully inadequate”, and criticise the strategy for failing to assess the impact of the policies proposed (see here and here).

Both NGOs have filed the claims in connection with the Climate Change Act 2008, which requires the following:

• the Government must prepare proposals and policies to enable CO2 emission targets to be met, which “taken as a whole, must be such as to contribute to sustainable development”; and
• the Government has a duty to report on these proposals and policies, including the timescales over which they are expected to take effect.

The NGOs allege that the Government’s Net Zero Strategy does not meet these requirements because it will not enable such CO2 emission targets to be met.

Although both NGOs have filed similar claims, there are some differences in their approach:

• ClientEarth also alleges that the Net Zero Strategy fails to protect the human rights of young people; they allege that the Net Zero Strategy impacts upon rights to life and family and private life under Articles 2 and 8 of the European Convention of Human Rights; and
• Friends of the Earth is alleging that the Government did not sufficiently consider the impact that its Heat and Buildings Strategy (published at the same time as the Net Zero Strategy) would have on protected groups, such as ethnic minorities, the elderly and disabled people. They therefore claim that the Heat and Buildings Strategy breaches the Equality Act 2010.

Before the claims can proceed, the judicial review process means the Government will be able to file grounds of defence and the Court will then have to consider whether to grant the NGOs permission to continue the claims.

The claims continue the ongoing trend of increased activity in climate-related litigation. Alongside having previously brought successful cases against the UK (and other) Governments, the NGOs have also brought cases against private companies. This includes Friends of the Earth’s Dutch arm, Milieudefensie, who successfully challenged Shell’s climate transition plan in a Dutch court last year (see previous post here). We have also seen a recent action by Greenpeace and Deutsche Umwelthilfe against vehicle manufacturers and an oil and gas firm in Germany. 

Last week, Milieudefensie sent a letter to 30 large companies requesting climate action plans and evidence of how they intend to reduce their CO2 emissions by at least 45% by 2030 (press release here). They have indicated that they are “prepared and willing” to take such companies to court if they fail to take sufficient action (see here and here).

Clearly, it is not just Governments that are at risk of litigation for failing to take sufficient action on climate change. Corporates and the financial sector also have a very significant role to play. We expect the focus in 2022 to be on the need for businesses to turn their climate pledges into action and produce credible and robust climate transition plans or face the risk of legal challenge and/or increased shareholder and investor activism as a result.