The Heathrow Case in the Supreme Court: Climate Change Legislation and Administrative Adjudication
| Published date | 01 January 2023 |
| Author | Joanna Bell,Elizabeth Fisher |
| Date | 01 January 2023 |
| DOI | http://doi.org/10.1111/1468-2230.12736 |
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Modern Law Review
DOI:10.1111/1468-2230.12736
The Heathrow Case in the Supreme Court: Climate
Change Legislation and Administrative Adjudication
Joanna Bell∗and Elizabeth Fisher†
In R (on the application of Friends of the Earth Ltd and others) vHeathrow Airport Ltd the UK
Supreme Court allowed an appeal against the Court of Appeal’s decision that there had been
a series of legal errors in the designation of the Airport National Policy Statement.This case
note analyses the case from an ‘internal’doctr inal perspectiveand argues that the Supreme Court
could haveengaged more explicitly with the legal issues that ar ise fromclimate change leg islation
for administrative law adjudication.For courts to adjudicate well in such circumstances they
need to be prepared to develop administrative law doctrine, particularly in light of the issues
of integrating climate change into public decision-making and of scientic/policy uncertainty
which lie in the background of climate change legislation.
Climate change litigation generates a good deal of scholarly interest.1This is
unsurprising, reecting not only common law legal scholarship’s preoccupation
with case law,2but also the way in which court cases have been understood as
a means of catalysing ‘regulatory pathways’to a lower carbon future.3The UK
Supreme Court’s decision in R (on the application of Friends of the Earth Ltd and
others) vHeathrow Airport Ltd (the Heathrow case)4does not t easily into this
narrative.
While the Court did conclude that the Secretary of State for Transport
had not breached his legislative obligations in relation to climate change in
promulgating theAirportsNationalPolicy Statement (ANPS), thatoutcome
must be seen in context.Under the Planning Act 2008 (PA 2008), the devel-
oper must still obtain a development consent order (DCO).5Assessment of
compatibility with up-to-date climate targets – including the net-zero carbon
∗Associate Professor and Tutorial Fellow in Law, St Edmund Hall and Faculty of Law,University of
Oxford. The authors wouldlike to thank the anonymous reviewer and Brian Preston for comments
on an earlier draft of this article. Any errors or omissions remain our own.
†Professor of Environmental Law,Faculty of Law and Corpus Christi College, University of Oxford.
1An overview ofmuch ofthat literaturecan befound inJ.Setzerand L. Vanhala,‘ClimateChange
Litigation: A Review of Research on Courts and Litigants in Climate Governance’ (2019) 10
WIREs Climate Change e580.
2See J. Waldron,The Dignity of Legislation (Cambridge: CUP,1999)11.
3J.Peel and H.Osofsky,Climate Change Litigation: Regulatory Pathwaysto Cleaner Energy (Cambridge:
CUP, 2015).
4[2020] UKSC 52.
5PA 2008, Parts 4-7and Heathrow ibid at[10], [157].
© 2022TheAuthors.TheModern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law ReviewLimited.
(2023)86(1)MLR 226–237
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License,which per mits
use and distribution in any medium, provided the original work is properly cited,the use is non-commercial and no modications or
adaptations are made.
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