High Court takes a dim view of using judicial review to disagree with policy decisions on the path to net zero

In R. (on the application of Boswell) v Secretary of State for Energy Security and Net Zero [2024] EWHC 2128 (Admin), the High Court has dismissed an application for judicial review of the grant of development consent for the Net Zero Teesside Project, finding that the decision that the Project would help deliver the Government's net zero commitment was lawful and supported by national policy.

Key Points

• Environmental impact assessments ("EIA") are intended to improve environmental decision-making and are not supposed to be an obstacle course for decision-makers to trip over.

• The court will not be convinced by claimants who simply disagree with the merits of a policy decision seeking to "wilfully" ignore or misinterpret relevant policy or decision documents.

• It did not matter that the claimant disagreed with the analysis and weight given to different factors as long as the reasoning behind the decision, read sensibly and taken as a whole, was clear and lawful.

Background

The dispute concerned the Secretary of State for Energy Security and Net Zero's ("SoS") decision to approve a new gas-fired electricity generating station with post-combustion carbon capture (the "Project"). The Project would be the UK's first full-chain capture and storage scheme and is intended to capture significant CO2 emissions. It would also be capable of providing flexible generating capacity which can ramp up and down rapidly to meet demand, thus contributing to energy security.

In the SoS's decision letter, she noted that the Project would emit 20 million tonnes of CO2 during its operational life and referred to the fact that national policy statement EN-1 stated that operational greenhouse gas ("GHG") emissions were a significant adverse impact from some types of energy infrastructure which could not be totally avoided. The SoS recognised that the Project's emissions would have significant adverse effects, but ultimately concluded that the Project would help to deliver the government's net zero commitment. The SoS also agreed with the examining authority's conclusion that the Project would contribute towards meeting the urgent need for new electricity capacity.

Judgment

The claimant sought permission to apply for judicial review on various grounds at a rolled-up hearing.

1. Whether the SoS's reasoning was lawful

The claimant noted that the interested parties had used the Institute of Environmental Management and Assessment ("IEMA") Guidance, which aims to assist in the assessment of GHG emissions, and that this guidance was also referred to in the examining authorities' report. The claimant submitted that the SoS must also have applied the IEMA Guidance when assessing that the GHG emissions would have a significant adverse effect. The claimant considered there to be a tension between the finding of significant adverse effect based on IEMA, and the conclusion that the Project “will help deliver the Government’s net zero commitment” because the IEMA Guidance states that GHG emissions are considered to be significant adverse where a project “is locking in emissions and does not make a meaningful contribution to the UK’s trajectory towards net zero” or “falls short of fully contributing to the UK’s trajectory towards net zero”. The claimant argued that it was not rational to assess significant adverse effects on the basis of the IEMA Guidance and yet conclude that the Project meets the net zero commitment. Therefore, the claimant alleged that there was a demonstrable flaw in the reasoning, and further that the SoS failed to give adequate reasons for this conclusion.

However, the court found that when the decision letter was read sensibly and as a whole, it was clear that the SoS was not relying on the IEMA Guidance for her conclusion on significance. She had not referred to the IEMA Guidance in her conclusion, nor had she referred to the analysis which was set out in the IEMA Guidance.  She had instead referred to national policy statements EN-1 and EN-2. Lieven J found that if the SoS had been relying on IEMA Guidance, it could reasonably be expected that she would have said so in the decision letter. Most importantly, Lieven J noted that the SoS's conclusion made "perfectly good sense" if the SoS was assessing significance on the simple basis of national policy statements EN-1 and EN-2.

Lieven J agreed with the interested parties' submissions that the claimant was "wilfully choosing to ignore what is said in national policy about the net zero trajectory and the need for CCS/CCUS [carbon capture and storage/carbon capture utilisation and storage]". She noted that the claimant plainly disagreed with the SoS's approach and was seeking to use the case to challenge the policy support for the Project "by trying to find an inconsistency in the SoS's analysis where none actually exists". The court noted that, in any event, even if the SoS had relied on the IEMA Guidance, it was not clear that it could have made any difference to her ultimate conclusion given that the Project was strongly supported in national planning and energy policy and it was clear to any fair reader of the examining authorities' report and decision letter why the SoS supported the Project despite the level of emissions. While the claimant may disagree with the analysis and weight given to different factors, "the reasoning behind the conclusions are both clear and lawful".

2. Whether the Secretary of State misinterpreted EN-1

The claimant argued that even if the SoS purported to reach the conclusion on the significant effects of GHG emissions from the Project by reference to EN-1, that was a misinterpretation.

Lieven J found that the claimant had erected a bright-line distinction between matters that went to EIA and those that went to determination, which was both "unjustified" and "thoroughly unhelpful". The court noted that EIAs are not supposed to be an obstacle course for decision-makers to trip over. The suggestion that the significance of an impact for assessment purposes was legally distinct from that for determination purposes created such an obstacle course and was therefore unlikely to be correct. The court also found that the language and guidance of EN-1 comfortably encapsulated both assessment of impacts for the purposes of EIA and for consideration of weight to be attached in the determination stage.

3. Whether the Secretary of State failed to reach a lawful assessment of need for the Project

The claimant also submitted that the SoS failed to consider the extent to which the Project contributed to the need for a fossil fuel generating station with CCS before determining the weight to be given to the need.

The court found that this ground was inarguable and that it was impossible to fairly read the decision letter and examining authorities' report without it being entirely clear why there is a need for the Project. The claimant's approach was described as a "wilful misreading" of EN-1 and the decision letter. While Lieven J rejected the other grounds after granting permission on the basis that she considered them arguable, she refused permission for this final ground.

Comment

This is yet another decision illustrating that assessing the environmental impact of projects is a complicated process involving consideration of multiple factors. Lieven J's reminder that the EIA process is intended to improve environmental decision-making, rather than being an obstacle course for decision-makers to trip over, is pertinent in light of the Government's recent announcement of plans to produce new guidance in the wake of the Supreme Court decision in Finch earlier this year.

The judgment also makes it clear that the court will be alive to claimants trying to use judicial review to attempt to challenge substantive policy where there is no clear evidence of a public authority erring in the decision-making process.