The winds of change – What next for public law climate disputes in the UK?

Climate change-related disputes continue to grow in terms of the different types of claims and the different common law and civil law jurisdictions around the world where such litigation has been brought. In this first piece of our climate change disputes series, we start by giving the public law perspective in the UK, as this is the area where the majority of climate disputes in the country have been focused to date.

Looking back

Historically, climate litigation in the UK was the field of public lawyers alone, arising in judicial review or statutory challenges to specific developments that had an obvious environmental impact such as large energy and infrastructure projects. In that sphere, climate change-related issues have been raised for many years, usually without success. Arguments about the impact of increased greenhouse gas (GHG) emissions did not persuade the English courts in relation to fracking in Preston, nor gas-fired generating units in Drax Power. In these and other cases the decision maker was permitted, so long as they had appropriate regard to adverse climate change impacts, to prioritise government policy focusing on energy need. Realism trumping idealism was a political issue and not one in which the courts were interested.

In more recent public law cases it is possible to detect a shift in the courts' own rhetoric, perhaps an acknowledgment of wider society's changing attitudes; the High Court has recognised that "climate change is a global problem". However, the Court of Appeal neatly encapsulated the context as follows in UKEF: "We recognise at the outset that the 197 state parties to the Paris Agreement of 12 December 2015 (the Paris Agreement) said that climate change represented an urgent and potentially irreversible threat to human societies and the planet…Notwithstanding that stark statement of the position, this case concerns an application for judicial review of UK Government decision-making and is to be determined… on the basis of accepted and familiar principles of public law…Our task is only to establish whether the decision is vitiated by an error of law."

Ultimately this view is borne out by the recent decisions in public law cases concerning a specific project. For example, in the UKEF case, Friends of the Earth (FoE) challenged a decision to provide export finance in support of a natural gas project which the government had concluded was aligned with UK obligations under the Paris Agreement. The Court of Appeal reminded us that the Paris Agreement does not give rise to domestic legal obligations as it is an unincorporated international treaty. It took a hands-off approach, respecting the broad margin of discretion afforded to public bodies in public law when faced with complex and uncertain issues. This meant the decision remained lawful, even where there were doubts acknowledged later as to the actual compatibility with the Paris Agreement and despite failing to estimate Scope 3 emissions accurately.

A slightly different take on the issue was seen in the aviation context concerning the expansion of Bristol Airport. The key question in Bristol Airport was whether emissions from the proposal would materially affect the ability of the UK to meet its target of net zero by 2050. The court concluded that aviation emissions are primarily to be considered at a national, rather than local, level. Although there would be an admitted increase in CO2 emissions, this was a matter for the relevant Secretary of State to manage as part of the duties under the Climate Change Act 2008 (CCA) and was not a material consideration pointing against airport expansion.

We have also started to see an increase in broader challenges to policies and strategies rather than limited to discrete large projects. In R (Friends of the Earth Ltd and ors) v Secretary of State for Business, Energy and Industrial Strategy, the High Court partially upheld a challenge to the government’s Net Zero Strategy (the NZS) under the CCA, relying on specific statutory requirements. The NZS was quashed and the government has since published a replacement, although that too is now subject to legal challenge.

Attacks on strategy are not limited to obviously environmental or energy-based policies. In R (on the application of Global Feedback Ltd) v Secretary of State for Environment, Food and Rural Affairs, the claimants sought to challenge the UK Government's Food Strategy, including on the basis of the same legislative requirements under the CCA. Despite the Bristol Airport case point that not all departmental strategies are required to fulfil the duties in the CCA, the Court of Appeal granted permission for judicial review. The court stated that the issue of climate change and the steps taken to achieve net zero are in themselves matters of public interest. This was described as a "huge victory in climate change litigation".

The cases so far demonstrate that whether the challenge is framed narrowly to a specific project, or broadly to overarching government policies, domestic public law challenges remain constrained by the deference shown to public bodies over complex policy and scientific issues balancing competing considerations. The High Court is conscious that "it is the government's role to determine how best to balance emissions reductions across the entire economy". This reflects the proper role of judicial review which is careful not to stray into the merits of decisions. All the while climate change issues are framed as a factor to be considered as part of a broad discretion, it is unlikely challengers will find greater success unless the issues have been truly ignored. Similarly, as long as binding legislation only bites on certain points, such as the discrete duties in the CCA, opportunities for a powerful judicial review claim are limited.

Looking around

Despite the above obstacles, claimants have not been discouraged. The press is full of reports of new judicial review cases raising climate issues. Some are a continuation of the traditional challenges to specific schemes or projects, such as FoE's challenge to a new coal mine in Cumbria. Others are broader, such as Greenpeace's judicial review of the government’s decision to launch a new licensing oil and gas round. These cases are likely to fall into the same category as previous challenges where, unless the decision maker did not consider these issues at all, it is difficult to buck the trend of the court not wanting to interfere in how climate considerations are balanced against energy security.

The substantive content of government policy (as opposed to its application in a particular situation) is also increasingly being seen as a fertile area for formal challenge through the courts, rather than simply lobbying at the earlier stages of policy development. This is unsurprising when you consider how many relevant policies and strategies now exist in this area, with more under consideration all the time. While drawing further attention to the climate implications and, as the challengers argue, limitations of such policies, policies are intended to be non-binding and flexible and therefore squarely in a zone the courts do not like to police too heavily.

Drawing together what appear to be common grounds of challenge being raised across various judicial review cases, it is apparent that the cumulative or wider environmental impacts are a key area of focus at present. So far, the courts have reinforced the idea that each project or policy sits within its own discrete area, meaning local authorities or other government ministers do not have responsibility for overall UK carbon emissions. Further, each project is assessed in isolation rather than considering the cumulative impact of linked projects or, crucially, the Scope 3 emissions.

The first climate-related judicial review of a financial regulator in the UK gives an indication of another area of potential focus. ClientEarth sought permission for judicial review of the Financial Conduct Authority (FCA), over the agency's approval of Ithaca Energy's listing prospectus, alleging a failure to properly explain how climate change risks affect the business. Although refused permission by the High Court on the papers, this case is an illuminating example of how much potential there still is for the use of judicial review in the climate context. As regulation in different areas develops to address climate change risks, it will be for regulators to enforce those developments, and the route of challenge against them will often be judicial review. This first case against the FCA demonstrates the considerable scope for expansion of public law climate litigation in the UK.

Looking ahead

Perhaps the most obvious area for expansion of climate litigation in the UK in the public law context is the extent to which decision makers are required to assess Scope 3, or indirect/downstream emissions. The case law to date has grappled with whether, in a given case, assessment of Scope 3 emissions is required. A key issue is the difficulty of assessing and attributing the impact of emissions that take place in a different time and place and as a result of the actions of another individual or entity. Such emissions may not be in the control of the developer, may not be foreseeable or may be subject to intervening processes. The extent of the requirement to consider Scope 3 emissions also varies according to the nature and process of the decision. In this area all eyes are on the Supreme Court, which is currently considering R. (on the application of Finch on behalf of the Weald Action Group) v Surrey CC and others (Finch).

The key question in Finch is whether a planning authority considering a project of crude oil extraction should have required an assessment of the impacts of GHG emissions resulting from the eventual use of the refined products of that oil as fuel. The High Court concluded that these emissions were "incapable of falling within the scope of EIA". However, the Court of Appeal, although reaching the same eventual outcome, did not draw such a firm line, holding that Scope 3 emissions were capable of being "direct and indirect significant effects of the proposed development".

Although this judgment appears to have opened the door to requiring the assessment of Scope 3 emissions, there was a great deal left unresolved by the Court of Appeal which both developers and decision makers will hope the Supreme Court takes the opportunity to clarify.

Another area that has not yet seen significant intervention by the domestic courts is the use of the European Convention on Human Rights (ECHR). However, this is certainly on the radar of environmental groups. There are various climate change-based cases before the European Court of Human Rights (ECtHR) at the moment. The ECtHR's approach in its early judgments could either shut down such cases, at least temporarily, or lead to an explosion in litigation where citizens in signatory states to the ECHR such as the UK may be able to bring domestic human rights claims. Human rights legislation may become a significant area for redress against the state, particularly given the ability to recover damages which does not exist in purely domestic public law challenges.

Conclusion

Looking at the statistics alone, there have been few formal victories for claimants in climate change-based challenges in the UK to date in the public law context (and indeed in other contexts too). However, focusing only on that aspect fails to understand the strategy behind such challenges, whereby drawing attention to the issues and sparking public debate is nearly as much of a win for claimants as a judgment in their favour.

Ultimately, it seems likely that the plethora of policies and guidance may pave the way for more concrete binding commitments. At that stage the courts may be called upon to protect and uphold those obligations enshrined in law and will be much more willing to do so. The winds of change are blowing.

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This is a much shortened version of an article which is due to be published in the Journal of Planning & Environment Law by Thomson Reuters