On 18 July 2022, the High Court handed down its decision in Friends of the Earth, ClientEarth, Good Law Project v Secretary of State for Business, Energy and Industrial Strategy  EWHC 1841 (Admin), and found that the government has failed to take into account material considerations when formulating climate policies in its Net Zero Strategy and ordered the government to submit a revised analysis to the Parliament before the end of March 2023 explaining how the policies in the Net Zero Strategy will contribute to the UK’s emissions reduction targets.
The Climate Change Act 2008 (“CCA”) requires the UK to reduce its greenhouse gas (“GHG”) emissions to net zero by 2050. This target forms part of the UK’s response to the Paris Agreement. Under the CCA, the government sets a carbon budget (which is a net UK carbon account) for each five-year period, with the aim of meeting the 2050 net zero target. Once set, the government is required to prepare proposals and policies for meeting the carbon budget (s. 13, CCA) and then lay before the Parliament a report setting out such proposals and policies (s. 14, CCA). In October 2021, the Secretary of State (“SoS”) laid the UK’s Net Zero Strategy (“NZS”) before the Parliament as his report under section 14 of the CCA (see our previous blog post).
The legal challenge
The claimants (Friends of the Earth, ClientEarth and Good Law Project) challenged the sixth carbon budget (“CB6”) set for the period 2033-2037, which is the first carbon budget to be based on the net zero target (and is understood to be substantially more challenging that those previously set). The claimants did not challenge the setting of the carbon budget itself but sought judicial review primarily on the basis that the SoS had failed to comply with sections 13 and 14 of the CCA. In particular:
Duty to prepare proposals and policies for meeting carbon budgets (s. 13 CCA)
The SoS had to be satisfied that the numerical estimate of emissions reductions from policies in the NZS with a quantifiable effect will enable 100% of the target in CB6 to be met (when in fact, the quantifiable policies in the NZS would achieve only 95% of the target in CB6, leaving the 5% shortfall to be made up by a qualitative judgment about the future effects of the policies).
The SoS failed to take into account matters which he was legally obliged to consider. In particular, the SoS did not consider: (i) the contributions which each quantifiable policy would make to meeting the CB6; and (ii) which policies were proposed to make up the 5% shortfall and in what ways. He was not briefed by his officials on those matters.
Duty to report on proposals and policies for meeting carbon budgets (s. 14 CCA)
The SoS failed to include in the NZS an estimate of the contribution which each quantifiable policy would make to meeting the carbon budgets, the existence of the 5% shortfall and how that shortfall would be made up. This information was legally required to discharge his reporting obligations under section 14 of the CCA.
The High Court’s decision
The High Court found that section 13 had been breached, but not that section 13 of the CCA requires the SoS to be satisfied that the quantifiable effects of the proposals and policies will enable 100% of the target in the carbon budgets to be met (as argued by the claimants at (a) above).
However, the High Court did find that the SoS was provided with insufficient information, and therefore was not able himself to consider or appreciate how each individual policy would contribute to the targeted emissions-reduction or explain which policies were proposed to make up the 5% shortfall (as argued by the claimants at (b) above).
These were “obviously material” considerations on which, as a matter of law, information had to be provided to the SoS, so that he could discharge his functions under section 13.
Although extensive quantitative analysis had been carried out which identified the contributions made by individual policies to meeting carbon budgets, that information was not included or summarised in the briefing given to the SoS for the purposes of his approving the NZS – the SoS was only given analysis considering the overall effects of policies in reducing GHG emissions.
Since such policy-specific quantitative analysis was also missing from the report laid before the Parliament, the report failed to explain or quantify the effects of the proposals and policies properly. Further, the report did not mention the 5% shortfall and so section 14 of the CCA was also not complied with (see (c) above).
These legal errors were of such a nature that it was likely that the NZS (and hence the government’s strategy for achieving CB6) would have been substantially different, if not for the errors.
The claimants’ related arguments based on the Human Rights Act 1998 (i.e. that if there was any ambiguity as to which interpretation was to be preferred, it should be the claimants’, as this was more consistent with the Human Rights Act 1998) were rejected. This was in part due to the clear language of the statute and in part due to the lack of a “clear and constant” principle of Strasbourg case law on which the claimants could rely.
The government has been ordered to lay before the Parliament a new report that includes policy-specific quantitative analyses before the end of March 2023 and was refused permission to appeal.
The UK overachieved its carbon budgets for the periods 2008-2012 and 2013-2017 and is on track to meet the next carbon budget in 2022. However, as mentioned above, CB6 is the first carbon budget to be set after the CCA was amended following the Paris Agreement to require net zero GHG emissions by 2050. CB6 will also include emissions from international aviation and shipping for the first time. It is likely that achieving CB6 will be more challenging. The High Court’s judgment signals to the government that climate change policymaking must be specific and detailed and realistically capable of achieving targets, demanding that implementable action follow public commitment.
The decision also shows the courts’ willingness to substantively scrutinise executive decision-making when it concerns areas of public interest, like climate change. Though the High Court showed cognisance of the need to “tread carefully” given the principle of separation of powers, it dived into the details of the information available before the government and concluded that the materials, on a substantive evaluation, were insufficient.
The High Court tested the policies against the assessment of the government’s independent climate advisors, the Climate Change Committee (the “CCC”). The CCC had assessed that the relevant policies may result in a 5% shortfall. This advice was given considerable weight and the High Court stressed the importance of the CCC’s effective and rigorous scrutiny of policy packages. The CCC’s latest annual assessment identifies serious inadequacies in government policy, which may give rise to further litigation (see our previous blog post).
It is worth noting that this judgment has widely been reported as one that has declared the NZS unlawful. However, the court’s decision does not go that far. The government has been ordered to re-assess its proposals and policies and lay a revised assessment in a report before the Parliament before the end of March 2023. It remains to be seen whether the policies will undergo material change following the reconsideration.
Finally, this is not the first time a government’s climate policy has been challenged in the courts (see, for example, the decisions of the courts in Germany, France, Italy, Belgium and Poland) – nor is it likely to be the last time. With the physical effects of climate change becoming more frequent and intense, urgency is mounting on governments worldwide to take action.