As the UK experiences new record temperatures, the trend of challenging governments and public bodies on the grounds that insufficient regard has been paid to the climate shows no signs of cooling either.
Activist environmental groups have had some success in the UK this week as the High Court ordered the government to report on how its net zero policies would deliver its emissions targets.
Judicial review proceedings were brought against the Secretary of State for Business, Energy and Industrial Strategy by Friends of the Earth Limited, Client Earth and the Good Law Project.
There were broadly three grounds of review:
- The first two alleged that the Secretary of State had failed to comply with sections 13 and 14 of the Climate Change Act 2008 (CCA).
- Section 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 to be met. The section 13 challenge sought to argue that omissions from the material provided to the Secretary of State in October 2021 rendered his briefing legally insufficient for him to be satisfied that the proposals and policies would enable carbon budget 6 for the period between 2033 and 2037 to be met.
- 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. The claimants argued that the government's net zero strategy failed to comply with section 14 because matters were omitted from that report, including an estimate of the contribution which each quantifiable policy would make to meeting the carbon budget.
- The final challenge, based on human rights grounds, argued that sections 13 and 14 of the CCA contravene, or risk contravention of, article 2 (right to life) and article 8 (right to respect for private and family life) of the European Convention on Human Rights.
The court's decision
The High Court was not persuaded that section 13 required the Secretary of State to be satisfied that his numerical estimate of emissions reductions from quantifiable policies will enable 100% of the target in a carbon budget to be met. However, the court did partially uphold the ground of the section 13 challenge, finding that the Secretary of State had insufficient information on how the carbon budget would be met.
In relation to section 14, the court held that the net zero strategy – in failing to include any quantitative assessment of the contributions expected to be made by individual policies to reductions in emissions – did not meet the government's obligations under the CCA to produce detailed climate policies that show how the UK's legally binding carbon budgets will be met.
The human rights challenge was rejected, the court accepting that the claimants' argument went beyond any "clear and constant" principles laid down in Strasbourg case law.
The court ordered that a fresh report (in terms of section 14) be laid before Parliament no later than the end of March 2023. It also refused leave to appeal.
A global trend
This case reflects a global trend of activists turning to the courts to prompt greater action by governments. Analysis by The Grantham Research Institute and London School of Economics shows that, outside the US, governments remain the most common defendants in climate cases, with around 70% of all global cases having been filed against governments (421 out of 576) (see Global Trends in Climate Litigation: 2022 Snapshot, 30 June 2022). Such claims may target national framework policies or targets, climate-related legislation, specific government policies (e.g. concerning energy production or transport), project authorisations and public finance decisions. The Grantham/LSE report identifies 28 cases filed globally against governments in 2021 alone, with the aim of targeting the overall ambition and design of a government's response to climate change.
Some claims have had notable success. One of the most significant is Urgenda Foundation v. State of the Netherlands. The Dutch District Court and the Hague Court of Appeal concluded that the government's plan to cut emissions was inadequate and ordered an increase in emissions reductions targets. This outcome inspired many similar actions globally. Activists in Germany secured a ruling last year that the government's climate legislation is insufficient due to its failure to make sufficient provisions for emissions cuts beyond 2030 (Neubauer, et al v. Germany).
There has been less success for activists in the UK to date. Last year, Plan B filed a petition for judicial review alleging that the failure to implement effective climate measures violated human rights. Permission to proceed was refused with the opportunity being taken to stress that courts are not well equipped to determine adequacy of government policy on such matters. That position is likely to remain, as seen in the position the court adopted in this case on the human rights challenge. The High Court's decision this week does not consider substantive policy issues – its focus is on the narrower question of the level of detailed reporting required by the CCA 2008 in order to enable Parliament and the public to scrutinise the UK's net zero strategy. Yet, it remains an important indication of the courts' willingness to scrutinise government action on climate change in appropriate cases.