A High Court challenge against the Secretary of State for Transport’s approval of a controversial third runway at Heathrow Airport is to go to appeal after being refused the right to judicial review on all key contested grounds. The case has potentially far-reaching implications for policy on aviation greenhouse gas emissions and has been brought just as much tighter climate targets are being discussed.
The high profile challenge, originally launched by Friends of the Earth and litigated by law firm Leigh Day, was brought on the grounds that in its Airports National Policy Statement (ANPS) designated under the Planning Act 2008 in June 2018 the Government had failed to adequately take into account the impact of additional greenhouse gas emissions on climate change policies it has signed up to. This includes the Paris Agreement on climate change as well as on sustainable development policies. It was seen by NGOs as a key test of the government’s climate change obligations in relation to aviation policy.
In a hearing in January, the Government also had to concede it was already in possession of evidence of the need for tighter climate change targets in the light of the Paris Agreement in order to avoid a court order to release this information, FoE stresses.
The latest hearing, in the Divisional Court comprising Lord Justice Hickinbottom and Mr Justice Holgate was a rolled-up hearing covering five separate claims for judicial review of the lawfulness of the DfT’s designation of the ANPS underlying the decision to approve the department’s preferred option of a third runway to the North West of the two existing runways ("The NWR Scheme"). Four of these litigants, all opposing expansion, were the London Borough of Hillingdon, hosting Heathrow, and four adjacent boroughs, the Mayor of London, several environmental NGOs including Greenpeace, Friends of the Earth and Plan B Earth, and Mr Spurrier, an individual claimant. The fifth litigant was a promoter of a rival Heathrow scheme aimed at doubling the length of the existing northern runway ("the ENR Scheme").
Climate change was the main issue to attract public interest, while other grounds for challenge included air quality, surface access, noise, habitats and in the fifth claim, "legitimate expectation and anti-competition".
But in the High Court on 13 March regarding FoE’s climate case the court ruled that the Secretary of State was not obliged to consider the Paris Agreement, only targets and policy under the Climate Change Act 2008, despite an acceptance that those targets are inadequate. All other claims were also dismissed.
One of the key arguments for dismissing litigants’ climate challenges was that "the Paris Agreement does not impose any legally binding target on each specific contracting party to achieve any specified temperature level by 2050". Another was that it does not form part of UK law despite being ratified by the UK, and so until Parliament decides on whether and how to incorporate the Paris Agreement ambition, it carries no weight in domestic law. The judgement notes that s.2 of CCA 2008 gives the Secretary of State power to amend the UK’s 2050 target in response to relevant developments, but does not impose a duty to do so. It also notes that: "The CCC’s advice as at October 2016 was that the existing 2050 target is potentially consistent with a wide range of temperature outcomes, and was compatible with the Paris Agreement." On the basis of that advice, it says "the Secretary of State was plainly entitled to refuse to change the 2050 target".
As to human rights, it says: "The alleged failure of the Secretary of State to take preventative measures in the face of climate change was not arguably a breach of article 2 or 8, or of article 1 of the First Protocol ("A1P1) to, the European Convention on Human Rights ("ECHR")."
The DfT’s draft aviation strategy, which stressed the ANPS view that emissions from expansion at Heathrow could be accommodated within carbon budgets in various ways such as through carbon trading, caused tension with the CCC, which pointed out that this would mean other sectors taking on a very large burden of reduction of 80% - 100%.
DfT’s response was that the CCC had already set a generous budget for aviation allowing growth in emissions. It also stressed the strategy allowed for a challenge in the event emissions growth threatened ability to meet carbon budgets.
"Any increase in carbon emissions alone is not a reason to refuse development consent, unless the increase in carbon emissions resulting from the project is so significant that it would have a material impact on the ability of Government to meet its carbon reduction targets, including carbon budgets."
But this is a very high bar to meet and difficult to prove.
The judgement also rejected in principle attempts to challenge inconsistencies in the ANPS by detailed analysis, pointing out that this level of detailed scrutiny is inappropriate for a high-level planning document.
On whether and if so when to adopt the net zero target in the Paris Agreement, the Government came a step closer to being bound by this from 2018. It had after all commissioned the CCC to provide advice in the light of the Intergovernmental Panel on Climate Change (IPCC) special report of 8 October 2018 into the implications of moving from 2°C to a stricter 1.5°C, and it was clear that far more stretching measures would be needed.
The judgement also argues that litigation would be more appropriate once a Development Consent Order is applied for and more details of the scheme are known. Even so, it recognises that this cannot address the question of need for more aviation capacity, or even of location in the case of Heathrow, which are both established in the ANPS itself. As already stated, the bar for challenging greenhouse gas emissions is also set very high.
Arguably, a key challenge faced by the climate litigants has been that their case pre-dated, and as yet still pre-dates, the UK’s formal incorporation of a much stricter net zero goal into its domestic legislation. The publication of the CCC’s much-anticipated and historic report on 2 May recommending adoption of a net zero target for 2050 as soon as possible, ironically a day after the judgement, has certainly moved the debate on.
Even so, while the Government has welcomed the report it has yet to formally respond to it, let alone adopt it, though this is now increasingly likely in the light of recent evidence of worsening climate change, pressure from campaigners including Extinction Rebellion, school climate strikes and pressure from enlightened business coalitions. It remains to be seen whether adoption will occur in time for FoE’s appeal, and to what extent this will increase its chances of success.
Commenting on the High Court setback, Craig Bennett, chief executive of Friends of the Earth, said: "Expanding Heathrow is wrong on every level and we can’t let it go. I could not sleep at night if Friends of the Earth did not challenge this decision. We are going to appeal because we believe the Court got it wrong."
He added: "We are in an ecological and climate emergency and parliament have supported an outdated decision to chase climate-wrecking development. How can we take any government remotely seriously when they claim to care about climate chaos while supporting this runway? "We are going to continue this fight because it’s about more than a runway, it is actually about a future fit for our children."
As part of its 134-point manifesto for climate change action, released the day before the judgement, Greenpeace also said the Government needs to: "Seriously clamp down on flying, whose emissions are currently not properly accounted for. A Frequent Flier Levy would provide one tax free return flight a year per person and then progressively increase tax on each flight beyond that. All new runways should also be banned, including at Heathrow."
Anticipating the CCC net zero advice the following day, Rowan Smith, solicitor at Leigh Day, said: "We will reflect on the judgment and advise our client on the prospects of any appeal. Despite the court’s decision in favour of the government we expect that this will be overtaken by tomorrow’s planned publication of advice from the Committee on Climate Change on the need to revise the UK’s current climate change targets in line with the Paris Agreement. We hope that the Committee’s advice will positively move forward the arguments that Friends of the Earth have advanced throughout these legal proceedings."