Adding (‘sustainable’ aviation) fuel to the fire: an analysis of Government plans to decarbonise aviation

Cornerstone Climate

Cornerstone’s Verity Bell has published an analysis of the Government’s plans to decarbonise the aviation sector. 

On 17 April 2023, the Department for Transport published a 2-year action plan in support of Government aims to decarbonise aviation. The plan includes the response of Government to the Department-commissioned evaluation of the conditions necessary to create a sustainable UK sustainable aviation fuel industry.

The key elements of the 2-year action plan include:

1. Legislating for the sustainable aviation fuel mandate from 2025, requiring at least 10% of UK aviation fuel to be made from sustainable sources by 2030;
2. At least five commercial-scale SAF plants to be under construction by 2025;
3. Proposing measures and programmes required to commercialise zero emissions flight; and
4. A review and analysis of the regulatory landscape, with ambitions to define a UK certification programme for hydrogen powered large commercial air transport in 2024.

Policy background

The recent Plan to decarbonise aviation forms part of the Jet Zero Strategy, a national policy document published in July 2022 by the Department for Transport. The Jet Zero Strategy focuses primarily on the development of sustainable aviation fuel and no or low-emission aircraft technologies, rather than managing the demand for aviation.

The reliance of the policy on sustainable aviation fuel is not uncontroversial within the scientific community. The Climate Change Committee, the independent statutory body established under the Climate Change 2008 to advise Parliament, has responded to the Jet Zero Strategy. The Committee noted that “an over-dependence on yet to be developed technology is risky” and recommended “a much higher role for demand-side action in reducing emissions, which is necessary to mitigate the risk of supply-side measures falling short”.

Similarly, the Royal Society has emphasised in its February 2023 report that further research and development will be needed in the development of the efficient production, storage and use of green hydrogen, ammonia and efuels, as well as to understand and mitigate the non-CO₂ climate impacts of all alternative jet fuel options.

Legal challenge to the Jet Zero Strategy

There are two joined judicial review challenges to the lawfulness of the Jet Zero Strategy brought on slightly different grounds by climate charity, Possible, and by climate campaigners, the Group for Action on Leeds Bradford Airport (GALBA). A rolled-up hearing, considering both permission and the substantive judicial review, is due to be heard later this year in the summer/autumn.

The Jet Zero Strategy is challenged by Possible on the following grounds:

1. The Secretary of State failed to lay a report before Parliament setting out how the strategy would enable the UK to meet the carbon budgets pursuant to section 13 of the Climate Change Act 2008; and
2. The consultation conducted by the Secretary of State on the strategy was inadequate because it excluded consideration of measures to reduce the demand for aviation prior to consultation.

GALBA seeks to challenge the Jet Zero Strategy on additional grounds. These additional grounds include:

1. The Secretary of State unlawfully failed to take into account the recommendations of the Climate Change Committee in its progress report to Parliament, relying by analogy on R(Wyatt) v Fareham BC [2022] EWCA Civ 983 (“Wyatt”) for the proposition that a decision-maker is required to give cogent reasons if the advice of an expert statutory body is not followed;
2. The Secretary of State breached the duty to make sufficient inquiries (the “Tameside” duty) by failing to assess the information required to formulate the policy;
3. The Secretary of State failed to take into account an obviously material considerations, namely, relevant planning decisions on airport expansion schemes; and
4. The Secretary of State failed to discharge the public sector equality duty pursuant to section 149 of the Equality Act 2010, having regard to the disproportionate impact of greenhouse gas emissions on racial and ethnic minority groups.

Broadly, the Secretary of State for Transport defends these grounds by reference to the following points:

1. The duty to achieve the carbon budgets and net zero by 2050 imposed by section 13 of the Climate Change Act 2008 relates, at a high level, to the whole economy; the carbon budgets are not sector nor aviation-specific targets. The Jet Zero Strategy, in contrast, is only concerned with the aviation sector and accordingly, is not subject to the economy-wide duty.
2. The Secretary of State did in fact take account of the Climate Change Committee’s advice, but was entitled to propose a strategy which did not involve direct demand management and lawfully disagree with the views of the Climate Change Committee. Further, Wyatt is not applicable: there is no express obligation in the present case to consult with the relevant statutory body.
3. The Secretary of State was entitled to consult on a strategy for achieving Jet Zero necessarily premised on the absence of direct demand management measures; there was no statutory requirement to consult, and was not required to adopt a different strategy than that which was consulted upon.
4. There was no breach of the Tameside duty: internally, it was concluded that there was not a requirement for an impact assessment, and the Secretary of State was not required to inquire further.
5. The Secretary of State conducted an Equality Analysis specifically for the Jet Zero strategy and in so doing discharged the duty to have “due regard” to the aims identified in section 149 of the Equality Act 2010.

Potential impact of the recent decarbonisation plans on the judicial review to the Jet Zero Strategy

Whether the recently announced plans impact the judicial review will turn on the extent to which the two-year plan enables the UK to meet the carbon budgets, and/or effectively remedies any identified defects in the process (e.g. consultation, alleged breaches of the Climate Change Act 2008) leading to the adoption of the Jet Zero Strategy.

Section 31(2A) of the Senior Courts Act 1981 (as amended) requires the Court, in an application for judicial review, to refuse relief “if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”, unless the court considers appropriate to disregard this requirement for reasons of “exceptional public interest”. Even if the court finds a failure to lay a report before Parliament, or the consultation, unlawful, the Secretary of State may seek to rely on the later plans to demonstrate that it is “highly likely” that but for these failures, the carbon budgets will nevertheless be met.

However, the steep evidential burden – “highly likely” – rests with the respondent to a judicial review seeking to rely on section 31(2A) of the Senior Courts Act 1981. Accordingly, the recently announced two-year plan is unlikely to affect the pending judicial review claims concerning the Jet Zero Strategy.

This article was originally published by LexisPSL in May 2023.

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