We have seen in recent months various and different attempts by those who want to change the course of government policy on the issue of climate change. David Attenborough is the voice of two new hard hitting documentaries aimed at educating audiences worldwide about the damage human activity is doing to the natural world. The Swedish teenage climate activist, Greta Thunberg, began what became a worldwide movement by inspiring children to strike from school in protest at a failure of national leaders to take action on climate change. The Extinction Rebellion movement has organised large civil disobedience demonstrations in London to raise awareness of the impending climate change disaster.

The power of litigation

Although less eye-catching and headline grabbing, there have also been legal challenges by environmental groups against the government’s decision to expand Heathrow Airport. The challenges were made by way of judicial review, which is the type of legal claim brought by individuals or groups who want to hold public bodies to account and try and change the course of public policy.

There were five applications for judicial review which were heard by the High Court in March 2019. One of these was brought by ‘Friends of the Earth’ and another by ‘Plan B’, which describes itself as ‘a networked, international movement of legal action to prevent catastrophic climate change’. Plan B’s case was that the government policy to expand Heathrow airport is illegal on the grounds that the policy fails in a number of ways to account for its compatibility with the UK’s climate change obligations.

But how much can those concerned about climate change hope to achieve via judicial review? What are the costs and benefits of taking legal action rather than taking to the streets?

Firstly, and most obviously, it is definitely cheaper to attend a protest than to apply for judicial review. Judicial review is, unsurprisingly, an expensive business and it is made even more so by the costs rules which mean that an unsuccessful claimant in judicial review claims not only have to pay their own costs but may also be ordered to pay the other side’s costs. Understandably, this puts many claimants off bringing a claim in the first place.

Thanks to the Aarhus Convention, from 2013 there have been rules in place designed to provide some protection for claimants bringing judicial review claims in relation the environment. The Aarhus Rules, as they are known, introduced a cap on liability for claimants of £5,000 (or £10,000 if the claimant is a business). However, in 2017 this protection was watered down somewhat when the Rules were amended to allow the court to vary this cap up or down, meaning that claimants still face uncertainty and financial risk if they want to bring an environmental judicial review claim.

If you can afford to bring a judicial review claim, is this an effective way to try and save the planet?

As this blog goes to press, we hear that the Heathrow judicial reviews have been unsuccessful, although Friends of the Earth have already indicated that they will appeal this decision. ClientEarth have had a number of successful challenges against the UK government in relation to air pollution, which have shown that persistent legal action can be very effective in holding the government to account. The government tried three times to implement an Air Quality Plan (AQP) in supposed compliance with the 2008 EU Directive which imposed limits on air pollution. Each time, the AQP plan devised was challenged by ClientEarth and found by the High Court to be unlawful. On the third occasion, in 2018, the Court took the highly unusual step of giving ClientEarth permission to return to Court if evidence arose that the government was not complying with the latest order. As a result of these judicial review claims, the government has spent nearly a decade being forced by the Court to improve its air pollution policies. The 2018 judgment concluded:

It is now eight years since compliance with the 2008 Directive should have been achieved. This is the third, unsuccessful, attempt the Government has made at devising an AQP which complies with the Directive and the domestic Regulations. Each successful challenge has been mounted by a small charity, for which the costs of such litigation constitute a significant challenge. In the meanwhile, UK citizens have been exposed to significant health risks.’

As a result of the most recent ruling in 2018, the government has told 28 councils to draw up plans to tackle NO2 levels and a further 33 to carry out ‘feasibility studies’ on whether a ‘Clean Air Zone’ was needed to reduce levels in the ‘shortest possible time’.

The example of ClientEarth shows that if you can afford to bring a judicial review claim, you might enjoy a relatively quiet and yet powerful success which forces the government to take climate change seriously.

The impact of legislation

What else could the law achieve to help save the world?

To date, much of the pressure to avoid an environmental catastrophe seems to have been placed on the individual – to change various habits such as reducing plastic and packaging (see our blog Plastic Packaging – Reduce, Reuse, Recycle), considering their carbon footprint (see our blog Climate change and the individual: Where to begin… by starting to ask the right questions), thinking about what they eat (see our blog Eating the Environment Better) and the clothes they buy (see our blog Confessions of a (mostly) reformed ‘Shopaholic’).

But whilst individuals will do what they can, surely if we want to see any significant improvements, the companies who are producing and selling all of these things (clothes, food, plastic, energy, etc.) must be forced to make changes to their business practices and be held to account. One of the obvious ways of doing so would be to enact legislation – for example, requiring supermarkets to reduce plastic packaging by setting quotas or targets; creating offences for businesses that don’t recycle; banning plastic straws and non-reusable coffee cups. Companies could also be required to publish a ‘sustainability statement’ in the same way that they are currently required to publish a Modern Slavery Statement in accordance with the Modern Slavery Act.

So why has so little been done? The answer must surely be to do with money, and the costs businesses would have to incur to comply with any such legislation. But is it really acceptable to continue using money as an excuse? As Greta Thunberg recently told the House of Commons – the “future has been sold so that a small number of people can make unimaginable amounts of money”. Ultimately, saving the planet depends on a trade-off between saving the environment and preserving wealth. Something will have to give – and let’s hope it’s not our planet.

The law (be it through judicial review or legislation) is a vital tool in calling those who are acting against the planet’s best interests to account. Both Parliament and the courts have a far greater role to play in creating law which brings about the change we need.