R (on the application of Friends of the Earth Ltd and another) v Secretary of State for Transport (Heathrow Airport Ltd, interested party)
| Jurisdiction | England & Wales |
| Judge | Lord Reed,Lord Hodge,Lady Black,Lord Sales,Lord Leggatt |
| Judgment Date | 16 December 2020 |
| Neutral Citation | [2020] UKSC 52 |
| Court | Supreme Court |
([2020] UKSC 52)
(Lord Reed, President; Lord Hodge, Deputy President; Lady Black, Lord Sales and Lord Leggatt, Justices)
United Kingdom, Supreme Court.
Relationship of international law and municipal law — Treaties — Treaty not incorporated into municipal law — Whether minister required to take treaty into account — United Nations Framework Convention on Climate Change, 1992 — Paris Agreement on Climate Change, 2015 — Decision to designate third runway at Heathrow Airport — Airports National Policy Statement — Planning Act 2008 — Whether Paris Agreement taken into account by Secretary of State for Transport — Whether Secretary of State obliged to take Paris Agreement into account in designating Airports National Policy Statement — Directive 2001/42/EC — Whether Secretary of State obliged to refer to Paris Agreement in environmental report
Environment — Treaties — Climate change — Greenhouse gases — Paris Agreement on Climate Change, 2015 — Designation of third runway at Heathrow Airport — Whether failure to take Paris Agreement into account vitiating decision to designate third runway — Whether Secretary of State obliged to assess non-carbon dioxide greenhouse gas emissions
Human rights — Treaties — European Convention on Human Rights, 1950 — Article 2 — Article 8 — Whether failure to take Paris Agreement on Climate Change, 2015 into account constituting unacceptable risk to life and to private life — The law of the United Kingdom
Summary:2The facts:—The appellant, Heathrow Airport Ltd, was the promoter of a development scheme for the construction of a third runway at Heathrow Airport. On 26 June 2018 the Secretary of State for Transport designated the Airports National Policy Statement (“ANPS”) under Section 5(1) of the Planning Act 2008. The ANPS contained the Government's policy in favour of the development of the third runway at Heathrow Airport.
The Climate Change Act 2008 set a national carbon target and required the Government to establish carbon budgets for the United Kingdom. On 12 December 2015 the Paris Agreement on Climate Change (“the Paris Agreement”) was agreed among the 197 Parties to the United Nations Framework Convention on Climate Change, 1992. The objective of the Paris Agreement was to limit the increase in global average temperature to well below 2 C, and pursue efforts to limit it to 1.5 C, above pre-industrial levels (Article 2).3 The United Kingdom ratified the Paris Agreement on 17 November 2016. It was common ground that the Secretary of State had not taken the Paris Agreement into account in making his decision to designate the ANPS.
The respondents were two environmental non-governmental organizations (NGOs), Friends of the Earth and Plan B Earth. Along with other environmental NGOs, London borough councils and the Mayor of London, they brought claims for judicial review challenging the designation decision of the Secretary of State for Transport. They argued that the designation of the ANPS was unlawful because the Secretary of State was obliged to take the Paris Agreement into account in making the designation decision under Sections 5(8) and 10(3) of the Planning Act 2008,4 as well as Article 5 of, read with Annex I to, the Council Directive 2001/42/EC on the assessment of the effect of certain plans and programmes on the environment (“the SEA Directive”).5
The Divisional Court dismissed the claims. On appeal, in which the present appellant was joined as an interested party, the Court of Appeal allowed the appeal, declaring that the Secretary of State had acted unlawfully in failing to take the Paris Agreement into account and to explain how he had done so in making the decision to designate the ANPS (193 ILR 535).6 The appellant appealed to the Supreme Court.
Held (unanimously):—The appeal was allowed.
(1) The Government's commitment to the Paris Agreement did not constitute part of “Government policy” on climate change within the meaning of Section 5(8) of the Planning Act 2008. The Secretary of State for Transport was not obliged to take the Paris Agreement into account in making the decision to designate the ANPS.
(a) The purpose of Section 5(8) of the Planning Act 2008 was to ensure a degree of coherence between the policy set out in the National Policy Statement and established Government policies on climate change mitigation and adaptation (para. 105).
(b) The term “Government policy” in Section 5(8) should be construed narrowly to mean formal written statements of policy. Parliament could not have intended ministers to be required to take into account any ministerial statement which could as a matter of ordinary language be described as a statement of policy. A statement qualified as policy only if it was clear, unambiguous, and devoid of relevant qualification (paras. 105–6).
(c) Statements made by Government ministers in the House of Commons about the Government's commitment to the Paris Agreement did not meet these criteria. They were statements concerning an inchoate and developing policy, rather than an established policy (paras. 106–7).
(d) The fact that the United Kingdom had ratified the Paris Agreement was not of itself a statement of Government policy. Ratification was an act on the international plane, and did not constitute a commitment operating on the plane of domestic law to perform obligations under the treaty (para. 108).
(e) When the Secretary of State designated the ANPS, the Government did not have an established policy on how to adapt its domestic policies to contribute to the goals of the Paris Agreement, nor on aviation emissions (para. 111).
(f) The argument that interpreting Section 5(8) so as to preclude consideration of the Paris Agreement temperature limit would tend to allow major national projects to be developed, which would create an intolerable risk to life and to family life contrary to Articles 2 and 8 of the European Convention on Human Rights, 1950, failed. Any such effect on life and private life would result from the making of a development consent order, rather than from the designation of the ANPS (para. 113).
(2) The Secretary of State, in making the ANPS, took the Paris Agreement into account and gave weight to it to the extent that the obligations under it were already covered by the measures under the Climate Change Act 2008. The Secretary of State did not act irrationally in omitting to take the Paris Agreement further into account, or give it greater weight, under Section 10(3) of the Planning Act 2008.
(a) Under Section 10(3) of the Planning Act 2008, a decision-maker might lawfully turn their mind to a consideration of the type to which the decisionmaker may have regard if in his judgement and discretion he thinks it right to do so, but decide to give it no weight (paras. 114–21).
(b) The United Kingdom's obligations under the Paris Agreement were given effect in domestic law, in that the existing carbon target and carbon budgets under the Climate Change Act 2008 already met, and go beyond, the United Kingdom's obligations under the Paris Agreement to adhere to the nationally determined contributions notified on its behalf under that Agreement. The Secretary of State took into account the duties under the Climate Change Act 2008 in deciding to issue the ANPS (para. 122).
(c) In the ANPS, the Secretary of State did in fact make a statement that covered the Paris Agreement as well as other international treaties (paras. 123–4).
(d) The Secretary of State acted rationally in taking the view that the international obligations of the United Kingdom under the Paris Agreement were sufficiently taken into account for the purposes of the designation of the ANPS by having regard to the obligations under the Climate Change Act 2008 (paras. 126–32).
(3) The Secretary of State did not act unlawfully under Section 5 read together with Annex I of the SEA Directive in omitting to include any distinct reference to the Paris Agreement in the environmental report in respect of the ANPS.
(a) The environmental report referred to the carbon target and carbon budgets under the Climate Change Act 2008, so to that extent the United Kingdom's obligations under the Paris Agreement were covered in the environmental report. The Paris Agreement had been considered and the Secretary of State had decided in the exercise of his discretion not to make distinct reference to it (para. 140).
(b) Article 5(2) and (3) of the SEA Directive conferred on the Secretary of State a discretion regarding the information to include in an environmental report. The discretion was subject to the conventional Wednesbury standard of review, so that a court could decide whether a particular exercise of that discretion was one which no properly directed decision-maker could have made (paras. 142–4).
(c) The function of the environmental report was to inform the public about a proposed project to enable them to provide comments on it. The public authority that promulgated an environmental report should have significant editorial discretion in compiling it, so that the public were not overwhelmed with unhelpful detail (paras. 145–6).
(d) The public was able to comment on the Paris Agreement in the course of the consultation and their comments were taken into account in the environmental assessment. Further reference to the Paris Agreement was not required (paras. 147–9).
(4) The Secretary of State did not act irrationally in respect of his duty under Section 10(2) and (3) of the Planning Act 2008 in not attempting in the ANPS to assess post-2050 emissions from the use of the third runway. Nor did he act irrationally in not addressing the effect of the non-carbon dioxide emissions in the ANPS.
(a) The Secretary of State had a margin of appreciation in deciding what matters he should consider in performing his Section 10 duty (para. 152).
(b) The Secretary of State quantified the likely emissions...
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