Government's climate change plan found to be unlawful for the second time

In Friends of the Earth & Ors v Secretary of State for Energy Security and Net Zero [2024] EWHC 995 (Admin) the High Court has found the Carbon Budget Delivery Plan ("the Plan") to be unlawful. The Plan formed part of the statutory process set out in the Climate Change Act 2008 ("CCA") to achieve net zero by 2050. It follows a similar finding in relation to the earlier Net Zero Strategy ("NZS") in 2022, covered in a previous blog post. The Government is now expected to go back to the drawing board for a third time to produce a report that meets its statutory obligations in relation to climate change.

Key Points

• The legally binding statutory duties in relation to climate change require the Government to be satisfied that its policies will meet certain targets.
• This requires a realistic assessment of whether certain policies will in fact do so, focusing on risk of delivery to work out whether a policy is likely to miss a target and if so by how much.
• Vague, unquantified and incomplete information was not sufficient here and rendered the Government's Plan irrational and unlawful as it was based on reasoning not justified by the evidence.

Background

The CCA was amended in response to the UK’s obligations under the Paris Agreement, which requires member states to hold the increase in global average temperatures. Section 1 of the CCA requires the relevant Secretary of State (now Secretary of State for Energy and Net Zero) ("SoS") to ensure that the net UK carbon account for 2050 is at least 100% lower than the 1990 baseline. The SoS is also required by statute to create carbon budgets for future periods.

Section 13 of the CCA requires the SoS to prepare “such proposals and policies” as he considers will enable the carbon budgets which have been set to be met. Section 14 requires that the SoS must lay before Parliament a report setting out proposals and policies for meeting the relevant carbon budgets.

Following the earlier defeat in the High Court in relation to the NZS, the Government was ordered to lay a compliant report before Parliament. The SoS purported to comply with this through the Plan which was laid before Parliament last year, and by which the SoS indicated he was satisfied that the package of proposals and policies as a whole would enable the relevant carbon budgets to be met.

Friends of the Earth, ClientEarth and Good Law Project, the same claimants involved in the NZS case, brought a further challenge on the following grounds:

1. The SoS failed to take into account mandatory material considerations when purporting to comply with section 13 of the CCA;
2. The SoS proceeded on the basis of an assumption that all of the quantified proposals and policies would be delivered in full, and this assumption was not supported by the information as to risk to delivery with which the SoS was provided;
3. The SoS' conclusion that the proposals and policies will enable the carbon budgets to be met was irrational;
4. The SoS applied the wrong legal test to section 13(3) of the CCA (“sustainable development”); and
5. The SoS failed to include information that he was required to include in the Plan.

Judgment

The court found in favour of the claimants on grounds 1-4.

Sheldon J dealt with grounds 1-3 together. The focus was on the risk to the delivery of individual proposals and policies and to the achievement of the carbon budgets and the 2050 net zero target. In particular, the court considered in detail the information provided to the SoS on this risk. This included the emissions savings that needed to be made over certain periods to meet the net zero target and attempts to quantify the contribution that proposed policies would make to those savings.

The court noted that there is no statutorily prescribed way in which the information about risk needs to be provided to the SoS. How risk information should have been presented to the SoS was plainly a matter for officials, subject to challenge only if the content of what was provided to the SoS did not enable him to carry out the statutory evaluation exercise lawfully. In this instance information about risk to the delivery of individual policies and proposals was provided to the SoS, as well as at a sectoral level. There was disagreement between the parties about how certain statements on risk presented to the SoS by his officials should be interpreted, but ultimately the court sided with the claimants in holding that a reasonable interpretation was that the SoS was being told that each of the individual proposals and policies that formed the package of measures would be delivered in full. However, the SoS acknowledged in court that not all of the policies and proposals would be delivered in full. On the basis that the SoS made his decision on this assumption, this was a mistaken understanding of the true factual position which made the decision irrational, as it was based on reasoning not justified by the evidence.

This otherwise irrational decision could only be saved if it could be established that the SoS would have been highly likely to reach the same decision even if he had not made that assumption. However, Sheldon J could not see how this very high threshold could have been met. It was not possible for the court to find that this was highly likely to have been the case, as the SoS did not have sufficient information to enable him to make that decision. The court did not think it possible to ascertain from the materials presented to the SoS which of the proposals and policies would not be delivered at all, or in full. It was not possible, therefore, for the SoS to have evaluated for himself the contribution to the overall quantification that each of the proposals and policies was likely to make.

Even if the SoS was not proceeding on the assumption that each of the proposals and policies would be delivered in full, then his decision under section 13 of the CCA would still be flawed and unlawful because he was not provided with sufficient information as to the obviously material consideration of risk to the individual proposals and policies. The information provided was not said to be misleading but was incomplete, "vague and unquantified" – it would have been necessary to say more to allow the SoS to work out whether a proposal or policy was likely to miss a target and if so by how much. The court noted that the section 13 evaluation was one for the SoS to make personally: he could not simply rely on his officials.

This finding was despite the court accepting that a low intensity of review should be applied to the section 13 assessment made by the SoS in circumstances where the decision involved an evaluative, predictive judgment as to what may transpire up to 14 years in the future, based on a range of complex social, economic, environmental and technological assessments, operating in a polycentric context.

The court also upheld ground 4, based on s13(3) of the CCA which states that the "proposals and policies, taken as a whole, must be such as to contribute to sustainable development.” The claimants argued that this required the SoS to conclude that the proposals and policies, taken as a whole, will contribute to sustainable development. Since the Plan only stated that the proposals and policies are "likely" to make that contribution, this did not meet the much higher threshold required by s13(3). On no reasonable view could it be said that “likely” means “must”. This was therefore also an error of law.

Whilst the judgment did not specify what the court would now require the SoS to do, the expectation is that the Government will have to produce a third new report to comply with its duties under the CCA, although whether that will fall to this Government or the next remains to be seen.

Comment

This is the first major domestic decision on climate change issues since the much-publicised ruling from the European Court of Human Rights ("ECtHR") last month, but no reference to human rights was needed here for the challenge to succeed. The binding domestic legislation governing achieving net zero by 2050 had sufficient teeth to allow the court to make a finding of unlawfulness, whilst at the same time acknowledging that these were technical and complex issues properly within the competence of the SoS.

Although this decision was based purely on domestic principles of public law and statutory interpretation, it is interesting to see the court taking a practical and realistic approach to duties in this context, focusing on the reality of whether certain targets would actually be achieved and emphasising that "vague and unquantified" information was not sufficient in this context. This chimes with the approach advocated by the ECtHR that it is no longer sufficient to simply create climate change mitigating plans and measures – they must be applied effectively in practice. This latest victory will give claimants increased confidence in asking the courts to police the net zero plans of whoever is in Government going forward.