Louise Clark analyses a court ruling that the government’s strategy failed to meet its obligations.
Key points
- Judicial review ensures that public bodies act within the limit of their legal powers in the exercise of their decision-making functions
- A minister can rely on briefing material but omission of matters which there is a legal obligation to take into account leads to an unlawful decision
- A report required to be laid before Parliament facilitates accountability and satisfies the public interest in transparency
A claim for judicial review has established that the government’s Net Zero Strategy did not comply with the requirements of the Climate Change Act 2008 in Friends of the Earth Ltd and others v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841 (Admin), a decision which means the government will need to revise its climate strategy to show how key emissions reductions targets will be met.
The legal background
The Paris Agreement on Climate Change adopted in December 2015 seeks to strengthen the global response to climate change by holding the increase in global average temperature to 2°C above pre-industrial levels, and by seeking to limit that increase to 1.5°C by achieving a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century.
The UK adopted the Paris Agreement in November 2016 and responded in two ways. In June 2019 it amended the Climate Change Act 2008 so that the defendant was obliged to ensure that the net UK carbon account for 2050 is at least 100% lower (previously 80%) than the baseline in 1990 for CO₂ and other greenhouse gases. Second, in December 2020 it communicated its nationally determined contributions to reduce national greenhouse gases by 2030 by at least 68% (previously 53%) compared to 1990 levels.
The 2008 Act requires the defendant to set a carbon budget for each successive five-year period between 2008 and 2052, “with a view to meeting” the 2050 target. The UK overachieved CB1 and CB2 and is on track to meet CB3. CB6, for 2033-37, the first to be based on the amended target for 2050, was set in June 2021 and is substantially more challenging. In October 2021, the defendant laid the NZS before parliament as a report under section 14 of the 2008 Act.
The challenge
The claimants, environmental, not-for-profit organisations, alleged that, in relation to CB6, the defendant had failed to comply with sections 13 and 14 of the 2008 Act.
Section 13 requires the defendant to prepare proposals and policies to enable the carbon budgets to be met. The quantified effects of the measures proposed were estimated to deliver only around 95% of the reductions required to meet CB6, a fact which only emerged during the course of the proceedings. The defendant also failed to take into account material considerations: the contributions of each proposal/policy; which proposals/policies would make up the 5% shortfall; and timescales for delivery.
Section 14 requires the defendant to report to parliament as soon as practicable, after setting a carbon budget, setting out the proposals and policies for meeting it. The defendant had failed to include in the NZS the information legally required: an explanation for the conclusion that the proposals/policies would enable the carbon budgets to be met; an estimate of the contribution of each of them, as far as quantifiable; and the timescales over which they are expected to have that effect.
Section 13
The judge concluded that section 13 does not require the defendant to be satisfied, by quantitative analysis alone, that the quantifiable effects of the proposals/policies will enable the whole of the emissions reductions required by the carbon budgets to be met, but if there is a shortfall the defendant must be satisfied that the meeting of that shortfall, through qualitative analysis, is demonstrated with sufficient cogency.
The statutory scheme under the 2008 Act requires the minister to take into account the risk to delivery of individual proposals or policies and to the achievement of the carbon budgets and the 2050 net zero target which depends on the relative contributions made by individual measures in achieving those targets. This information, although available, was not presented to the minister; only national or sector level information was provided. This was obviously a material consideration. Without information on the contributions by individual policies to the 95% assessment, the minister could not rationally decide how much weight to give to those matters and to the assessment, to discharge his obligation under section 13. There were similar omissions of “obviously material” considerations concerning the proposals/policies for making up the 5% shortfall.
All agreed the section 13 obligations are continuing ones, but since the court was asked to review the position at a moment in time – October 2021 – the claimants were unable to demonstrate that the defendant’s judgment on this issue, in isolation, was legally flawed.
Section 14
The judge was satisfied that the 2008 Act required not merely a publication of the measures, as the defendant contended, but for the defendant to explain the thinking behind the proposals/policies and to provide quantitative analysis of how they would enable the carbon budgets to be met, the relevant timescales and how different sectors of the economy would be affected. This was reinforced by section 19, which requires the defendant to report to parliament, where a carbon budget is not met, setting out proposals/policies to compensate in future periods for excess omissions.
The NZS should have looked at the contributions to emissions made by individual or interacting policies. It failed to explain that the department’s quantitative analysis predicted that those policies, assuming delivery in full, would achieve only 95% of the reductions required for CB6 or how the shortfall would be made up. Other data which existed at the time was not included. These were obviously material to the critical issue of risk to the delivery of statutory targets and were matters on which the defendant was obliged to inform parliament and public. However, such information was not put before the minister who was therefore not in a position to form any view on whether it should be in included in the NZS.
Louise Clark is a property law consultant and mediator
