Environment – Environmental impact assessment – Carbon emissions – Claimant challenging decisions of defendant secretary of state to grant consent for three road schemes – Whether defendant acting unlawfully in failing to meaningfully assess combined carbon emissions from road schemes – Claim dismissed
The claimant challenged three decisions of the defendant secretary of state to grant consent for three road schemes along the A47 in Broadland, Norfolk. The schemes were all within a 12-mile radius of Norwich and designated as nationally significant infrastructure.
Before deciding to grant consent for the schemes, the defendant assessed the carbon emissions expected to be generated by each scheme, in particular, the emissions from vehicles using the roads once operational. He acknowledged each scheme would lead to an increase in carbon emissions. However, he concluded that when compared with the UK’s national carbon budgets, which spanned the period from 2023 to 2037, the increase in emissions from each scheme was not significant (ranging from 0.001% – 0.004% of any carbon budget).
In each case he concluded that the scheme was compatible with the UK’s trajectory towards net zero (the statutory duty on the secretary of state, under the Climate Change Act 2008, to ensure the net UK carbon account for the year 2050 was at least 100% lower than the 1990 baseline).
The claimant challenged the defendant’s decisions, contending that the defendant was under a legal duty to assess the cumulation of environmental effects with other existing and/or approved projects and he acted unlawfully in failing to meaningfully assess the combined carbon emissions from the three road schemes.
The question for the court was whether the approach adopted by the defendant in assessing cumulative impacts breached the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017.
Held: The claim was dismissed.
(1) The task for the court was to consider whether the evaluative judgments made by the defendant fell outside the range of reasonable decisions open to him or whether there was a demonstrable flaw in the reasoning which led to his decision. As the primary judges of the fact, the views of the defendant and the planning inspectors who publicly examined the road schemes were entitled to considerable weight.
The question of what impacts should be addressed cumulatively; how the cumulative impacts might occur; whether the effects were likely to be significant and if so how they should be assessed were all matters of evaluative judgment (Regulation 5(2) and 14(2)(3) of and paragraph 5 of schedule 4 to the 2017 Regulations). The identification and assessment of the cumulative impacts of development was an aspect of the wider assessment of the significance of the environmental impact of the project: R (Bowen West) v Secretary of State for Communities and Local Government [2012] EWCA Civ 321 considered.
(2) Consideration was given in the environmental statement and in the decision letters to the cumulative impacts. Their relevance was acknowledged. The “do something” figure of carbon emissions provided information on the combined emissions from the three schemes, in conjunction with other existing/planned future development in the area, assessed in carbon tonnes. On its face, the information satisfied the specific requirement of paragraph 5 of schedule 4 of the 2017 Regulations for a description of the likely significant effects of the development on the environment resulting from the cumulation of effects with other existing and/or approved projects and the broader requirement for a description of likely significant environmental effects in regulation 14(2)(b).
On its face, the defendant complied with regulation 21 of the 2017 Regulations in that the environmental information was considered, a reasoned conclusion reached on significant effects and the conclusion was integrated into the decision making.
(3) The decision-makers chose to assess the significance of carbon emission against a national target (UK carbon budgets). Other benchmarks were considered but discounted. The benchmark for the assessment of significance was a matter of judgment for the decision maker and was not challenged before the court. As the primary judges of fact, the views of the planning inspector and the defendant were entitled to considerable weight. More specific to the carbon context, the use of national carbon budgets as a benchmark for the assessment of carbon emissions had been confirmed as a lawful approach: Bowen West and R (GOESA) v Eastleigh Borough Council [2022] EWHC 1221 (Admin); [2022] PLSCS 83 considered.
The decision-makers also proceeded on the basis there was no geographic limit to the impact of GHG emissions. Their impact was on the global atmosphere. That was a scientific assessment to which the court afforded respect.
In those circumstances, there was a logical coherence to the defendant’s decision not to undertake a comparison of combined emissions against the national target. Effects of GHG emission from specific cumulative projects in general should not be individually assessed as there was no basis for selecting any particular (or more than one) cumulative project that had GHG emission for assessment over any other.
(4) On analysis, the claimant’s approach to cumulative assessment became, in essence, a case about the acceptability of the impact. However, the legislation did not deal with the acceptability of an effect identified by environmental information. That was a matter of judgement for the decision-maker, not a hard-edged point of law. The courts had to be astute to avoid being drawn into the arena of the forbidden merits. Decisions to upgrade strategic roads and their effect upon climate change was a subject attracting many widely differing views, whether for or against: GOESA.
(5) Judicial review was the means of ensuring that public bodies acted within the limits of their legal powers and in accordance with the relevant procedures and legal principles governing the exercise of their decision-making functions. The role of the court in judicial review was concerned with resolving questions of law. The court was not responsible for making political, social, or economic choices: R (Rights: Community: Action) v Secretary of State for Housing, Communities and Local Government [2022] EGLR 5 considered.
The fact there might be other approaches to the assessment of cumulative impacts did not take the defendant’s approach outside the range of reasonable responses available to him as the decision-maker, or mean it was based on flawed reasoning. The court was not persuaded that the defendant’s approach to the assessment of cumulative carbon emissions was unlawful and/or in breach of the 2017 Regulations.
David Wolfe KC, Peter Lockley and Ben Mitchell (instructed by Richard Buxton Solicitors) appeared for the claimant; James Strachan KC and Rose Grogan (instructed by Government Legal Department) appeared for the defendant; Reuben Taylor KC (instructed by Womble Bond Dickinson (UK) LLP) appeared for the interested party.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Boswell) v Secretary of State for Transport
