Guest Commentary: Legal action in the UK in a time of climate crisis


Posted on September 20th, 2022 by mariatigre

Guest Commentary: Legal action in a time of climate crisis

By Katie de Kauwe and Millie John-Pierre*

On July 18, 2022, one of the hottest days on record in the UK, an equally ground-breaking judgment was handed down by the High Court of England and Wales in R (Friends of the Earth Ltd and Others) v Secretary of State for Business Energy and Industrial Strategy [2022] EWHC 1841 (Admin). The court found that the UK Government’s plans to cut carbon emissions were inadequate and breached national law. There were three separate claims, brought by (1) Friends of the Earth, (2) ClientEarth, and (3) Good Law Project and environmental campaigner Joanna Wheatley. They all concerned failings in the UK government’s economy-wide decarbonization plan, the Net Zero Strategy (NZS). The NZS was adopted in October 2021 under s.13 and s.14 of the Climate Change Act 2008 (CCA). This piece of legislation was the first of its kind anywhere in the world. It requires the UK Government to set, and meet, legally binding targets to reduce carbon emissions.

Through affirming the CCA’s enforceability, the court case ensures that the UK Government is held accountable to its climate commitments. The outcome of the case was very significant for Friends of the Earth, as it had fought for the enactment of the CCA through its Big Ask campaign. The result of the case is also significant globally, as it bolsters the effectiveness of a piece of national law, at a time when several other countries have followed suit and adopted domestic legislation in an effort to curb their carbon emissions.

The case

Friends of the Earth filed its case in January 2022, followed shortly afterward by ClientEarth and Good Law Project. All three NGOs argued that the Government’s economy-wide decarbonization plan (the NZS) was unlawful and did not comply with the CCA. In addition, Good Law Project’s case included a human rights ground, and Friends of the Earth’s had a separate ground challenging the Government’s Heat and Building Strategy (HBS; its strategy to reduce emissions from heating and homes). In this separate ground, Friends of the Earth argued that the Government had breached the Equality Act 2010 by not properly considering the impacts of the HBS on people with protected characteristics.

The Secretary of State for Business Energy and Industrial Strategy (SoS for BEIS) submitted that all of the claimants’ grounds were unarguable, and should not get permission to proceed. However, despite this, Justice Cotter granted the claims permission to proceed on all grounds on March 1, 2022. The court ordered that the three separate claims be heard together, given the overlap between them, and the case was listed for a hearing on June 8-9, 2022.

Win on the HBS

A couple of months prior to the hearing, the SoS for BEIS u-turned on its position on Friends of the Earth’s HBS ground. Having previously argued that this ground was unarguable, after Justice Cotter gave the claims permission to proceed on all grounds, the SoS conceded that the Government had indeed acted unlawfully in relation to the HBS. Prior to the case, the Government had not done any equality impact assessment of the HBS. As recorded in the judgment, the Government has now committed to carrying one out.

This was a great achievement for the advancement of equality claims in climate litigation. The transition to a decarbonized economy must be a just and inclusive one, addressing rather than exacerbating existing inequalities. People of color, disabled people and older people are disproportionately impacted by energy poverty. It is vital, therefore, that a strategy that seeks to decarbonize heating and homes takes account of potential impacts on these groups.

Judgment

At the hearing on June 8-9, 2022, Friends of the Earth, ClientEarth, and Good Law Project combined their arguments into two consolidated grounds. First, that the Government had breached s.13 of the CCA, requiring the preparation of policies and proposals that will enable the Government to meet upcoming carbon budgets (a continuing obligation). Second, that the Government had breached s.14 of the CCA, requiring the preparation of a report to Parliament following the adoption of a new carbon budget (here, the sixth carbon budget, covering the period 2033-2037) on the policies to enable the Government to meet this and other upcoming carbon budgets.

The judgment was handed down by Holgate J on July 18, 2022. In a landmark victory for climate justice, the court ruled that the Government had not complied with s.13 or s.14 of the CCA. This was the first time that the UK had been found to have breached the CCA. The judgment concluded that the Minister lacked the legally required information to adopt the NZS, and that this compromised his ability to take account of the risk that the policies would not achieve the statutory carbon budgets (breach of s.13). For example, he had been advised that the quantified policies in the NZS added up to approximately 95% of the emissions reductions necessary to meet the carbon budget, but he was not told what the contribution of each policy was, or how the 5% shortfall would be made up.

And Holgate J found that the NZS itself contained insufficient information to allow Parliament, and the public, to properly scrutinize it. The judgment records the significance of this omission: “Parliamentary accountability is no less fundamental to our constitution than Parliamentary sovereignty” [judgment Holgate J at para. 189]. Parliament had effectively been kept in the dark on the 5% shortfall. The judgment concluded that the NZS should have included a quantified set of proposals setting out the projected emissions reductions from the policies themselves, so that Parliament could scrutinize this. In coming to this conclusion, Holgate J gave “considerable weight” to the views of the Committee on Climate Change, the expert, independent advisors to the Government on climate change. For further analysis of the judgment, see Friends of the Earth’s legal briefing here.

Wider Significance

The CCA was enacted over a decade ago, following a campaign led by Friends of the Earth. It was the first piece of legislation in the world to set legally binding carbon reduction targets in domestic law. Ultimately, this case has achieved far more than a finding of unlawfulness in relation to one government strategy, significant though that is. This case has shown that the CCA has teeth and can be enforced through the court system if the Government does not comply with its legal duties. That is incredibly important, both for the UK and for other countries that have adopted similar pieces of legislation. It matters, because we have seen a huge amount of rhetoric by our politicians, including at COP26, on the need for climate action. But there has been and continues to be a policy gap between the reduction targets set, and the plans to actually make these emissions reductions happen. And that’s exactly what this case was about: the NZS contained insufficient detail to comply with the CCA. It’s also important generally, that we hold our government to account in the UK, because the UK, as a developed nation and one of the richest countries in the world, has made an enormous historic contribution to carbon emissions, and has been a keen player in the climate warming we are seeing now.

The judgment is also a win for transparency. The 5% shortfall in the necessary emission reductions accounted for by quantified policies only became public knowledge through this court case. There was nothing on the face of the NZS to suggest there was such a shortfall. Previous attempts to obtain information on the quantified impacts of the policies had been refused by BEIS. Whilst 5% may not sound like all that much, in climate terms, it’s very significant, amounting to around 75 million tonnes of CO2e, which is the equivalent (roughly) of the annual car emissions for the whole of the UK.

What next?

It remains to be seen if there will be an appeal in the Court of Appeal. If there is no appeal, Friends of the Earth and the other claimants will await with great interest the revised NZS, which has a publication deadline of April 2023. Whilst the Government has sought to downplay the significance of the win, it’s clear there’s a lot for them to do to correct the legal errors identified by the court. The length of time they have been given to do this underscores that this is not a simple exercise.

Moreover, the Committee on Climate Change’s progress report in June 2022 makes clear that decisive action is needed from the Government: they concluded that there are credible plans in place for just 39% of the emissions reductions needed to meet the sixth carbon budget. Furthermore, as a campaigning organization, Friends of the Earth will be working with sector allies to ensure that the equality impact assessment for the HBS is comprehensive, and will advocate for an improved HBS which adequately protects the vulnerable in society.

 

* This blog post is part of the Sabin Center’s Peer Review Network of Global Climate Litigation and was edited by Maria Antonia Tigre. Katie de Kauwe and Millie John-Pierre are the rapporteurs for the UK, in addition to being part of the Friends of the Earth Legal Team.

 

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