Friends of the Earth Ltd v Secretary of State for Business, Energy and Industrial Strategy
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 18 July 2022 |
| Neutral Citation | [2022] EWHC 1841 (Admin) |
| Docket Number | Case No: CO/126/2022 CO/199/2022 |
| Court | Queen's Bench Division (Administrative Court) |
The Queen on the application of
[2022] EWHC 1841 (Admin)
THE HON. Mr Justice Holgate
Case No: CO/126/2022
CO/163/2022
CO/199/2022
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
David Wolfe QC, Catherine Dobson and Nina Pindham (instructed by Leigh Day) for the First Claimant
Jessica Simor QC and Emma Foubister (instructed by ClientEarth) for the Second Claimant
Jason Coppel QC and Peter Lockley (instructed by Baker McKenzie) for the Third Claimants
Richard Honey QC, Ned Westaway and Flora Curtis (instructed by Government Legal Department) for the Defendant
Hearing dates: 8 and 9 June and 15 July 2022
Approved Judgment
Introduction
Climate change is a global problem. In R (Spurrier) v Secretary of State for Transport [2020] PTSR 240 the Divisional Court gave a summary of some of the main issues involved at [558]–[563].
In 1992 the United Nations adopted the United Nations Framework Convention on Climate Change (“UNFCCC”). Following the 21 st Conference of the parties to the Convention, the text of the Paris Agreement on Climate Change was agreed and adopted on 12 December 2015. The United Kingdom ratified the Agreement on 17 November 2016.
Article 2 of the Agreement 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 pursuing efforts to limit that increase to 1.5°C. Article 4(1) lays down the objective of achieving “a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases [“GHGs”] in the second half of this century.” That objective forms the basis for what is often referred to as the “net zero target”, which will be satisfied if the global level of any residual GHG emissions (after measures to reduce such emissions) is at least balanced by sinks, such as forests, which remove carbon from the atmosphere.
Article 4(2) requires each party “to prepare, communicate and maintain successive nationally determined contributions [“NDCs”] that it intends to achieve”. Each party's NDC is to represent a progression beyond its current contribution and reflect its “highest possible ambition” reflecting inter alia “respective capabilities” and “different national characteristics” (article 4(3)).
The UK responded to the Paris Agreement in two ways. First, section 1 of the Climate Change Act 2008 (“CCA 2008”) was amended so that it became the obligation of the Secretary of State for Business, Energy and Industrial Strategy to ensure that “the net UK carbon account” for 2050 is at least 100% lower than the baseline in 1990 for CO 2 and other GHGs, in substitution for the 80% reduction originally enacted (see the Climate Change Act 2008 (2050 Target Amendment) Order 2019 (SI 2019 No.1056)). That change came into effect on 27 June 2019. Second, on 12 December 2020 the UK communicated its NDC to the UNFCCC to reduce national GHG emissions by 2030 by at least 68% compared to 1990 levels, replacing an earlier EU based figure of 53% for the same year.
According to the Net Zero Strategy (“NZS”), the UK currently accounts for less than 1% of global GHG emissions (p.54 para. 31).
Section 4 of the CCA 2008 imposes a duty on the Secretary of State to set an amount for the net UK carbon account, referred to as a carbon budget, for successive 5 year periods beginning with 2008 to 2012 (“ CB1”). Each carbon budget must be set “with a view to meeting” the 2050 target in s.1. The ninth period, CB9, will cover the period 2048–2052 for which 2050 is the middle year. Section 4(1)(b) imposes a duty on the Secretary of State to ensure that the net UK carbon account for a budgetary period does not exceed the relevant carbon budget. Thus, the CCA 2008 has established a framework by which the UK may progress towards meeting its 2050 net zero target.
The net UK carbon account referred to in s.1 and s.4 relates to carbon dioxide and the other “targeted” GHGs listed in s.24 (methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulphur hexafluoride). GHG emissions are expressed for the purposes of the Act in tonnes of “carbon dioxide equivalent” (s.93(1)). That term refers to either a tonne of CO 2 or an amount of another GHG with “an equivalent global warming potential” (“GWP”).
The Secretary of State has set the first 6 carbon budgets. Each has been the subject of affirmative resolution by Parliament. CB6 came into force on 24 June 2021 (The Carbon Budget Order 2021 – SI 2021 No. 750) and sets a carbon budget of 965 Mt CO 2e (million tonnes of carbon dioxide equivalent) for the period 2033 – 2037.
The six carbon budgets and their relationship to the 1990 baseline are summarised below:
Sources: NZS: p. 306 para.5 and p. 310 Table 1; R (Transport Action Network Ltd) v Secretary of State for Transport [2022] PTSR 31 at [50].
| Carbon budget | Period | Target emissions Mt CO 2e | Percentage reduction from 1990 level |
| 1 | 2008 – 2012 | 3,018 | 25% |
| 2 | 2013 – 2017 | 2,782 | 31% |
| 3 | 2018 – 2022 | 2,544 | 41% |
| 4 | 2023 – 2027 | 1,950 | 55% |
| 5 | 2028 – 2032 | 1,725 | 60% |
| 6 | 2033 – 2037 | 965 | 78% |
The UK overachieved CB1 by 36 Mt CO 2e and CB2 by 384 Mt CO 2e. It is on track to meet CB3 (NZS p.306 para.5 and endnote 4).
CB6 is the first carbon budget to be based on the net zero target in the amended s.1 of the CCA 2008. The previous budgets were based on the former 80% target for 2050. CB6 is also the first carbon budget to include emissions from international aviation and shipping attributable to the UK. It is common ground that the target in CB6 is substantially more challenging than those previously set.
These three claims for judicial review do not involve any legal challenge to the setting of the net zero target in s.1 or to the setting of any carbon budget (including CB6). Instead, it is alleged that the defendant has failed to comply with s.13 and/or s.14 of the CCA 2008.
In summary, s.13 imposes a duty on the Secretary of State to “prepare such proposals and policies” as he considers will enable the carbon budgets which have been set under the CCA 2008 to be met. It is common ground that this is a continuing obligation. Section 14 provides that “as soon as is reasonably practicable” after setting a carbon budget, the Secretary of State must lay before Parliament a report setting out proposals and policies for meeting the current and future “budgetary periods” up to and including that budget.
Following the setting of CB6, the Secretary of State laid the NZS before Parliament on 19 October 2021 as a report under s.14 of the CCA 2008.
The claimants apply for judicial review in relation to the decisions on 17 October 2021 (a) to approve the proposals and policies prepared under s.13 (as set out in the NZS) and (b) to publish the NZS as a report under s.14. In summary, the grounds which they pursued at the hearing were as follows:-
Ground 1: the Section 13 ground
The defendant erred in law regarding his obligation under s.13 of the CCA 2008, in that:
(i) On a proper interpretation of s.13, he was not entitled to reach the conclusion that the proposals and policies in the NZS would enable the carbon budgets to be met where the quantified effects of those measures were estimated to deliver less than 100% (i.e. around 95%) of the emissions reductions required to meet CB6;
(ii) Through insufficiencies in the briefing material with which he was supplied, the defendant failed to take into account relevant considerations which were “obviously material”, and therefore matters he had to consider under s.13 of the CCA 2008, namely:
(a) the time-scales over which the proposals and policies were expected to take effect;
(b) the contribution which each quantifiable proposal or policy would make to meeting the carbon budgets; and
(c) in relation to his qualitative judgment, which proposals and policies would enable the 5% shortfall for CB6 to be met.
Ground 2: the Section 14 ground
The defendant failed to include in the NZS the information legally required to discharge his reporting obligations under s.14 CCA, namely:
(i) an explanation for his conclusion that the proposals and policies within the NZS will enable the carbon budgets to be met;
(ii) an estimate of the contribution each of those proposals and policies is expected to make to required emissions reductions in so far as they are judged to be quantifiable; and
(iii) the time-scales over which those proposals and policies are expected to have that effect.
Ground 3: the Human Rights ground
In the alternative, ss.13 and 14 of the CCA 2008 have the effect for which the Claimants contend applying s.3 of the Human Rights Act 1998 (“the HRA 1998”), because to construe them in the way for which the defendant contends would contravene or risk contravention of Convention rights.
Friends of the Earth Limited is a not-for-profit organisation which undertakes campaigning and other environmental work in pursuit of environmental objectives. It includes over 300 community groups and has over 300,000 supporters. It was involved in campaigns contributing to the enactment of the CCA 2008. It is now concerned with what it describes as the pressing need for action to be taken on climate change, to ensure a safe and just outcome to the problem for current and future generations.
ClientEarth is an environmental law charity. Its charitable objects include the enhancement, restoration, conservation and protection of the environment, including the protection of human health for the public benefit.
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