Climate change litigation
Climate Change policy and litigation is a hot topic for lawyers, planners, and Governments. It is both fast paced and changing, as evidenced by the continual need to update this paper in the light of new statements of policy/guidance published in the run-up to the UK’s hosting of the United Nations Climate Change Conference (COP 26). By the time of delivery, we can expect some aspects to have changed yet further, given we will be in the midst of COP 26. Below, we provide the climate change policy framework, an analysis of the reach of climate change policy in appeal decisions, and an analysis of recent climate change litigation in the higher courts.
Climate change policy in the UK
The Climate Change Act 2008 (“CCA”) is the basis for the UK’s approach to tackling and responding to climate change. The CCA identifies a need for the reduction in the emissions of carbon dioxide and other greenhouse gasses, sets targets in respect of such reductions, and establishes a framework by which those requirements may be delivered. This section contextualises and sets out the key provisions of the CCA, explaining its relationship with the Paris Agreement and highlighting the aspects of National Planning Policy Framework (“NPPF”) which address climate change within the planning system.
The CCA (as amended by The Climate Change Act 2008 (2050 Target Amendment) Order 2019) commits the UK government to reducing greenhouse gas emissions by 100% of 1990 levels by 2050 (s.1(1) CCA) (“the net zero target”). The net zero target was originally Parliament’s response to the international commitment to keep global temperature rise to 2oC above pre-industrial levels in 2050 as against a 1990 baseline with a view to avoiding the worst adverse impacts of climate change.
The 2oC warming target had developed from the unqualified objective set out in the United Nations Framework Convention on Climate Change (“UNFCCC”)(1994) to prevent dangerous anthropogenic interference in the climate system, was prefigured in the individualised emissions reduction targets imposed by the Kyoto Protocol (1998), and became a matter of international consensus following the Copenhagen Climate Change Conference (2009) and Climate Change Conference (2010).
More recently, the 2oC warming target has been confirmed within the Paris Agreement (signed by the UK on 22 April 2016 and ratified on 17 November 2016). However, that treaty commits signatories to go further, and to hold the increase in global average temperature to “well below” 2oC whilst pursuing efforts to limit temperature increase to 1.5oC above pre-industrial levels.
Indeed, the present UK government has made it clear that it is committed to limiting temperature rise to 1.5oC and present emissions reductions targets are designed to give effect to that goal: in a speech to the UN General Assembly on 22 September 2021 Boris Johnson starkly confirmed “we must limit the rise in temperatures – whose appalling effects were visible even this summer – to 1.5 degrees.”
The CCA requires the government to set “carbon budgets” effectively as ‘stepping stones’ to meet the net zero target within s.1 CCA. By s.4(1)(a) CCA, such budgets must be set by the Secretary of State for Business, Energy and Industrial Strategy for each succeeding period of five years. The Secretary of State also has an obligation to ensure that the UK carbon account for any period does not exceed that budget with a view to meeting the net zero target (s.4(1)(b) CCA).
The Committee on Climate Change (“CCC”) (established by s.32(1) CCA) is bound, inter alia, to advise the Secretary of State as to the correct emissions percentage reduction contained within the 2050 target (presently the net zero target) (s.33 CCA), to provide advice on the appropriate level of each carbon budget (s.34 CCA) and to provide an annual report on the progress made towards meeting the relevant carbon budget and the 2050 target (s.36 CCA).
Following the advice of the CCC, the government recently brought into force its Sixth Carbon Budget, and by Article 2 of The Carbon Budget Order 2021 imposed the additional requirement of achieving a 78% emissions reduction by 2035 to support the net zero target by 2050.
The emissions reductions targets and carbon budgets adopted and maintained by the UK within the CCA, are also informed by the UK’s commitments under the Paris Agreement, which requires states to prepare, communicate and maintain successive nationally determined contributions (“NDCs”) that it intends to achieve with a view to reducing national emissions. The UK’s latest NDC, communicated to the UNFCCC on 12 December 2020 is to reduce economy-wide greenhouse gas emissions by at least 68% by 2030 as against 1990 levels with a view to meeting the 1.5oC warming goal on the basis of CCC advice.
Of course, also crucial in the context of planning climate change litigation are the relevant sections of the National Planning Policy Framework (“NPPF”). Paragraph 7 NPPF links the purpose of the planning system to the 17 UN Global Goals for Sustainable Development, which include amongst them ‘climate action.’ Paragraph 8(c) then goes on to confirm that the environmental objective of the planning system (one of its three overarching objectives) includes the need to mitigate and adapt to climate change. Paragraph 11 NPPF stresses climate mitigation and adaptation to be at the very centre of plan-making, stating that:
“all plans should promote a sustainable pattern of development that seeks to: meet the development needs of their area; align growth and infrastructure; improve the environment; mitigate climate change (including by making effective use of land in urban areas) and adapt to its effects.”
Note also that s.19(1A) of the Planning and Compulsory Purchase Act 2004 similarly requires authorities to include in their local plans: “policies designed to secure that the development and use of land in the LPA’s area contributes to the mitigation of, and adaptation to, climate change.”
Further guidance is provided within the dedicated Chapter 14 of the NPPF, which is titled “Meeting the challenge of climate change, flooding and coastal change.” The most obvious observation, in keeping with the above provisions of the CCA and its recently tightened emissions targets, is that paragraph 152 NPPF advises that “radical reductions in greenhouse gas emissions” will be necessary for the planning system to support the transition to a low carbon future. The accompanying Planning Practice Guidance similarly emphasises the primacy of addressing climate change on the governmental agenda, and therefore within the planning system, stating
“addressing climate change is one of the core land use planning principles which the National Planning Policy Framework expects to underpin both plan-making and decision-taking.”
Notwithstanding that guidance, the NPPF deals with climate matters separately in relation to plan-making and decision taking. Paragraph 153 NPPF requires plans to take a “proactive approach to mitigating and adapting to climate change” and footnote 53 to the paragraph confirms that this is to take place “in line with the objectives and provisions of the [CCA].”
As such the NPPF compels new development to be planned for in a way that reduces vulnerability to the range of impacts arising from climate change, and in a manner that “can help to reduce greenhouse gas emissions” through “location, orientation and design” (para. 154 NPPF), whilst also incorporating the use and supply of renewable and low carbon energy (paras. 155-6 NPPF).
At the decision-taking stage the NPPF is less explicit about the role of climate change mitigation. Paragraph 157 states LPAs should expect new development to comply with development plan polices on localised energy supply unless an applicant can demonstrate that doing so is not feasible or viable, and to take account of a variety of factors in minimising energy consumption.
Express provision is made in paragraph 158 for applications for renewable and low carbon development, which stresses that applicants need not demonstrate the overall need for such development as “even small-scale projects provide a valuable contribution to cutting greenhouse gas emissions.” By paragraph 158(b), applications for such developments should be approved if their impacts are or can be made acceptable.
The reach of climate change policy in appeal decisions
As referred to above, it is recognised within the NPPF that, at a high level, climate action is an integral part of achieving sustainable development (para. 7), and that mitigating and adapting to climate change forms an integral part of the environmental objective of sustainable development (para. 8(c)). Against that background, it is noticeable that the means by which that mitigation is to be achieved is front-loaded onto plan-making and policy formulation within section 14 of the NPPF (paras. 153-155). By contrast, when it comes to considering applications for development (other than for renewable and low carbon developments) the nearest thing to a freestanding “test” for the determination of planning applications is that LPAs should expect new development to take account of landform, layout, building orientation, massing and landscaping to minimise energy consumption (para. 157(b)). The approach of national policy to decision taking involving climate change considerations might be said to be out of step with the urgency of change demanded by the climate crisis.
Decision taking at both a local and a national infrastructure level can be seen to reflect the limited reach of national planning policy on climate change. This can be illustrated by reference to development control decisions in housing, road infrastructure, and airport expansion.
In the light of the importance given to delivering a sufficient supply of homes to meet the Government’s objective of significantly boosting the supply of homes in the NPPF (para. 60), it is perhaps unsurprising that climate change policy has not been a decisive issue in the refusal of housing schemes. Constructive engagement to deliver well-designed sustainable buildings and high-quality local environments suitable for low-carbon living should result in housing schemes which, amongst other things, maximise opportunities to enhance resilience (by e.g. reducing the causes of flooding), provide accessible private and public open spaces, give priority to sustainable drainage systems, and support sustainable waste management by providing space for recycling. Climate change policy objectives are often secured via conditions and s.106 obligations, and can be supported by specific policies in Local Plans involving e.g. making buildings resilient to climate change and sustainability in building design and construction.
Instead, climate change concerns are more often engaged indirectly through the consideration of other housing related impacts. These can provide opportunities for housing developers to demonstrate their climate change credentials without directly engaging the policies in section 14 of the NPPF.
For example, the assessment of a typical edge of village rural housing scheme will inevitably involve consideration of its landscape and visual impacts, and the extent to which any adverse impacts can be mitigated through an appropriate landscape strategy. Where the retention / replacement of existing trees, or the planting of new trees is proposed – as appropriate – as part of a long-term landscape strategy, the NPPF now provides a direct link to the climate change objective in the new para. 131, where it is expressly acknowledged that trees can also help mitigate and adapt to climate change. The importance of trees to achieving well designed places would be complemented by any net biodiversity gains which could be secured through landscaping strategies, for example by meeting or surpassing the 10% net biodiversity gain contained within the draft Environment Bill.
Moreover, the promotion of sustainable transport patterns provides opportunities for developers to demonstrate that their housing schemes are adapted to climate change by taking steps to move to a low carbon economy (para. 8(c)). Transport assessments which can demonstrate a modal shift to more sustainable modes of travel could give rise to weighty benefits insofar as they can show that appropriate opportunities to promote sustainable transport modes can be – or have been – taken up, that pedestrian and cycle movements have been prioritised, and that access to high quality public transport has been facilitated (paras. 110(a) and 112(a)). The extent to which rural housing schemes really are locationally sustainable, such that future occupiers will not be reliant on the private car, will often be in question.
Climate change considerations are written into the policy in this area. Sustainable transport modes are defined as any efficient, safe and accessible means of transport with overall low impact on the environment, which includes (as relevant) ultra low and zero emission vehicles, car sharing and public transport (NPPF, Annex 2, Glossary). There is an express national policy basis supporting the design of developments to enable charging of plug-in and other ultra-low emission vehicles (para. 112(e)). In these respects, promoting sustainable transport can be argued indirectly to promote the transition to a low carbon economy.
But beyond the approaches to climate change policy outlined above, the SoS – at least – will not venture. In the Sittingbourne Lane appeal (29 April 2021), the SoS was considering an urban extension (including outline permission for up to 595 dwellings and full permission for a first phase of 80 dwellings, and part of the link road). The SoS agreed with his Inspector’s recommendation that the overall package of public benefits justified a departure from the development plan and outweighed the effects on the landscape and setting of heritage assets such that planning permission should be granted.
However, the SoS refused to follow his Inspector’s recommendation in support of conditions which would bring about a staged reduction of carbon emissions. The conditions, proposed by the LPA, set a requirement for at least 50% reduction in carbon emissions from construction of the houses in the first phases, with a scaling down of carbon emissions through subsequent reserved matters stages through to net zero on or after 2028. The Inspector found that the development complied with current energy efficiency standards and the specific Local Plan policy for proposals to include measures to address and adapt to climate change. However, he took account of the council’s climate change declaration with its commitment to carbon neutrality locally by 2030 and the national commitment by 2050, as well as the promotion of stronger Building Regulations to pave the way for the Future Homes Standard, finding that these pointed to a clear direction of travel. He found that significant weight should be given to tackling climate change as a material consideration. The appellants had done the bare minimum and had not pushed the design process, and the conditions were a reasonable and necessary response to the scale and urgency of the climate change emergency (IR, 11.81-11.99).
The SoS agreed as to the significant weight to be attached to tackling climate change as a material consideration, and that the need for housebuilding to become greener, warmer and more energy efficient has become more urgent. However, the SoS considered that under the plan-led system it is not possible or desirable to predict what policies might apply in the future and apply them now. The conditions went beyond current and emerging national policy, and were therefore not reasonable or necessary (SoS, 33-37).
As with the policy position supporting the delivery of housing in national policy, the policy position applying to nationally significant infrastructure projects (NSIPs) for road improvement schemes provides little scope for objections on climate change grounds to lead to refusal.
Again, the limits of policy in this area can be discerned. Under s.10(3)(a) of the Planning Act 2008, the SoS must have regard to the desirability of mitigating, and adapting to, climate change in designating a National Policy Statement. The National Policy Statement for National Networks itself states that transport will play an important part in meeting the Government’s legally binding carbon targets (para. 3.6). However, it is stated that the impact of road development on aggregate levels of emissions is likely to be very small (para. 3.8).
The NPSNN goes on to require that applications for national networks infrastructure must consider the impacts of climate change when planning location, design, build and operation, and that the potential impacts of climate change should be taken into account using the latest UK Climate Projections available at the time (paras. 4.40, 4.42). However, in terms of generic impacts, the key policy test is narrowly framed. Applicants for road projects should provide evidence of the carbon impact of the project, but (para. 5.17): ‘It is very unlikely that a road project will in isolation affect the ability of the Government to meet its carbon reduction plans.’ That inevitably begs the question as to cumulative impacts and how they should be considered.
The Stonehenge DCO involved consent for a 13km stretch of the A303, with a dual carriageway, including a 3.3km long tunnel through the Stonehenge part of the World Heritage Site. The Examining Authority’s Report of January 2020 concluded that, on the available evidence, the proposed development would make an extremely limited contribution to the UK’s carbon targets and would not, in isolation, affect the ability of government to meet its carbon reduction plans (ER, 5.6.53). The cumulative impact concerns were advanced by Friends of the Earth and were largely directed at current national transport investment decisions and transport policy. A separate criticism was made of the approach of slicing up a road building programme into sufficiently small pieces so that each on its own appears to be of little account (ER, 5.6.54).
The Examining Authority’s response effectively avoided the issue of cumulative impact. It concluded that it would not be possible to provide an accurate or robust assessment of the contribution made by the development to the cumulative impact, together with other schemes, on overall Green House Gas emissions. Nonetheless, the development’s GHG contribution as a proportion of total UK carbon emissions would be very small (ER, 5.6.56). It should be noted that the SoS’s decision (12 November 2020) to grant the DCO was overturned following a High Court challenge on cultural heritage grounds. It remains to be seen how cumulative impact issues will be dealt with second time around.
A similar conclusion on cumulative impacts – though more fully reasoned – was reached in the A1 Birtley to Coal House Improvement Scheme in Gateshead. The scheme involved the widening of the north and southbound carriageways, with the proposed works covering a stretch of c.6.5km. The SoS (19 January 2021) took account of the Green Party’s representations that the scheme would contravene the Government’s declaration of a climate emergency, the amendment to the CCA in June 2019 to reflect net zero, the CCC’s Sixth Carbon Budget Report of December 2019, and its recommendations (SoS, 61-63). However, the SoS noted that the projected increase in GHG emissions from the scheme would represent a contribution of 0.01% to each of the third, fourth, and fifth carbon budgets, and agreed with the applicant’s conclusion that it was unlikely that the impact of the scheme, in isolation, would affect the Government’s ability to meet the revised target (SoS, 64).
As to the cumulative impact argument, the SoS agreed with the applicant’s assessment that the quantification in the ES of the emissions in the assessment of significance of effects inherently assessed the combined and cumulative effects, and that the applicant had in any event concluded that, taking account of other schemes nearby or globally, the impacts of the development would not affect compliance with the Government’s emission targets (SoS, 65).
Against that background, the A38 Derby Junctions DCO provides a recent example where the applicant appears to have come unstuck on cumulative impacts. The proposal involved a major junction improvement scheme on the A38 in Derby, including the provision of 6 lanes. By consent order on 8 July 2021, the SoS consented to the quashing of the DCO, accepting that he had failed to provide a reasoned conclusion as required by Reg. 21 of the EIA Regulations 2017, and / or had failed to include an up to date reasoned conclusion. The consent order is not reported and would not provide anything like the full reasoning of a Court judgment. However, it can be noted that the Examining Authority (8 October 2020) found that it was unable to conclude on a number of points, which it had left to the SoS, including consideration of the cumulative effects of carbon emissions from the scheme, together with those from other schemes on a consistent geographical scale, against the relevant UK Carbon budget (ER, 4.15.117-118).
There is nothing to suggest that aviation is exempt from the NPPF policy that the planning system should support the transition to a low carbon future in a changing climate, and that it should help to shape places in ways that contribute to radical reductions in GHG emissions (NPPF, para. 152). Rather, the Government’s objectives for aviation are set out in aviation specific policy. The Aviation Policy Framework (March 2013) sets out the Government’s high-level objectives and policy for aviation, recognising the benefits of aviation, particularly in economic terms, and seeking to ensure that the UK’s air links continue to make it one of the best-connected countries in the world. More recently, the DfT published the Airports National Policy Statement and Making Best Use of existing runways documents on the same day in June 2018, as complementary early components of the forthcoming Aviation Strategy. The ANPS is primarily concerned with providing a policy basis for a third runway at Heathrow, but is also of relevance to NSIP proposals (to increase passenger caps by 10 million passengers per year or more) in the South East. The Government’s broad support under MBU for airports beyond Heathrow making best use of their existing runways has led to a series of applications for airport growth which have either been determined or are in the planning process (e.g. Stansted, Leeds Bradford, Southampton, Bristol).
In determinations involving MBU, the issue which has exercised decision takers at a local level is the extent to which the Government’s policy on aviation reflects or has kept pace with tightening climate change policy, and in particular the net zero commitment enshrined in national law as of June 2019. Given its publication in June 2018, MBU is not a policy which is calibrated to net zero, and that has led to much debate about the extent to which its high-level assessment of carbon emission impacts should be relied upon in decision taking.
At the same time, councils have understandably questioned the sense of granting permission for significant airport expansion in their areas, so soon after adopting climate change declarations recognising the urgency of tackling climate change, with commitments to execute action plans within short timeframes (e.g. 2030).
There are a number of other aspects to the environmental effects of airport expansion which have underpinned the concerns raised relating to climate change. These include:
The lack of progress at an international level in negotiating reductions in international emissions through ICAO and the limited reach of offsetting schemes such as CORSIA, meaning that Government commitments, to work with ICAO on long term goals for aviation and to ensure that CORSIA is strengthened, ring hollow.
The inherent uncertainties of aviation forecasting, which are subject to market forces, the take up of new generation aircraft, and the development of novel fuels for their predictions as to emissions in the long term. When taken together with the experience that historic aviation forecasts have often been surpassed in practice, predictions as to the environmental effects of aviation growth are viewed with scepticism.
The long-term effects of airport expansion, which means that their environmental effects will be experienced for many decades.
The direction of travel of emerging policy on carbon emissions, involving a series of statements from the CCC advising the Government to take even stronger action on the reduction of GHGs, to assess its airport capacity strategy against the context that net zero is highly unlikely to be feasible by 2050, and that consideration should be given to limiting growth in aviation demand, including through management of airport capacity. This culminated in the CCC’s recommendations for the Sixth Carbon Budget (2033-2037), the first after net zero, in which they advised that if policy is not scaled up across every sector over the next 10 years, the UK will not deliver net zero by 2050 (p.5). Specifically, for aviation, they made a formal recommendation that there should be no net expansion of UK airport capacity unless the sector is on track to sufficiently outperform its net emissions trajectory and can accommodate the additional demand (p.162, Table 8.1).
In the Stansted appeal (May 2021), considerations such as these led the council to propose a condition tying actual passenger growth to a requirement that maximum levels of environmental effects – derived from the Environmental Statement – had actually been achieved, which would be assessed against policy in place at the time of growth. The condition was argued to be consistent with the national aviation policy objective of sharing the benefits of aviation growth (APF, para. 3.3). The Inspector Panel rejected such an approach both on the facts and as a matter of policy, considering it not to be necessary or reasonable, and commenting that such a condition would undermine the certainty which a planning permission should provide (para. 142).
Bringing matters up to date, MBU has not been amended or updated to reflect net zero. The Aviation Strategy remains “forthcoming”. In response to the CCC’s recommendation on limiting airport growth, the Government has stated its belief that the aviation sector, even if returning to a pre-COVID-19 demand trajectory, can achieve net zero (Jet Zero) without the Government needing to intervene directly to limit aviation growth. The effect is that a “first come first served” approach to airport expansion continues to apply, whereby each airport, relying on MBU, applies for a bit more growth and increase in carbon emissions against an upper ceiling budget, in circumstances where no single application can be said to threaten the UK’s carbon commitments.
The Examining Authority’s Report for the Manston Airport DCO (October 2019) stands out amongst the decisions permitting airport expansion. Having reviewed the state of extant and emerging policy on climate change in play at the time of that decision, the Examining Authority specifically took into account the direction of travel of emerging policy in concluding that the proposal’s contribution of 1.9% of the total UK aviation carbon target of 37.5 MtCO2 for 2050 would have a material impact on the ability of Government to meet its carbon reduction targets, including carbon budgets. This weighed against and supported the Examining Authority’s recommendation that the DCO should be refused (ER, 6.5.71). The SoS overturned that recommendation in his decision letter of 9 July 2020, but that grant was subsequently quashed by consent, with the SoS accepting that the reasons provided were inadequate.
Standing back from these decisions, and the approach to climate change policy which they reveal, it is unsurprising that the CCC continues to bang the drum for a recasting of the planning system to meet the UK’s legal and international climate commitments, seeking that adaptation be embedded into core policies including the Plan for Growth, the National Infrastructure Strategy, and legislation such as the Environment Bill. The limited reach of climate change policy has resulted in decisions which do not fully reflect the urgency of the need to tackle climate change.
Recent significant policies: the Net Zero Strategy etc
There has been significant pressure on the Government, in the run-up to COP 26, to address the gap between its climate commitments and the policies necessary to meet those commitments. On the day this paper went to print, 19 October 2021, the Government published a raft of new policies, chief among them being the long-awaited Net Zero Strategy. Also published were the Heat and Buildings Strategy and the Treasury’s Net Zero Review. We will address these in our talk.
It is no coincidence that, also on 19 October, the RTPI and the TCPA jointly published an updated edition of their guidance: The Climate Crisis – A Guide for Local Authorities on Planning for Climate Change.
Recent climate change litigation in the higher courts
Interpretation of national policy
In light of the shifting policy landscape outlined in the previous section, it is perhaps unsurprising that the lawful interpretation of national policy is a context in which the higher courts have had cause to consider climate change and climate policy. Earlier this year, the Court of Appeal considered the correct interpretation of a national policy statement concerning fossil fuel generation in R(on the application of ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy, Drax Power Ltd  EWCA Civ 43. The appellant environmental campaigning organisation, ClientEarth, sought judicial review of the decision of the Secretary of State for Business, Energy and Industry Strategy (“BEIS”) to grant a DCO in respect of a proposal to construct and operate two gas-fired generating units in North Yorkshire.
There were three interconnected issues considered on appeal. First, whether the Secretary of State had misinterpreted the relevant national policy statement, the 2011 Overarching National Policy Statement for Energy (“EN-1”), which set out Government policy for the delivery of major energy infrastructure; second, whether the Secretary of State had misinterpreted EN-1 specifically on the approach to greenhouse gas emissions; and third, whether the Secretary of State misapplied section 104(7) of the Planning Act 2008, which applies if the Secretary of State “is satisfied that the adverse impact of the proposed development would outweigh its benefits”.
The court dismissed the first ground of appeal, holding that the Secretary of State was entitled to consider that EN-1 recognised a need for all types of energy infrastructure, and this was a factor attracting substantial weight [55-56]. This was because no quantitative targets for the generating capacity need had been set deliberately, in light of other market-based mechanisms, including emissions trading systems, to influence delivery . Further, when approaching the question of weight to be placed on need under EN-1, the Secretary of State was entitled to place importance of fossil fuel generating capacity becoming “low carbon” through the development of infrastructure with carbon capture and storage capacity .
On the second ground, the appellant argued that the Secretary of State misinterpreted EN-1 as requiring the decision-maker to treat the greenhouse gas emissions of the development as irrelevant or having no weight; neither EN-1 nor the technology-specific national policy prevented greenhouse gas emissions from being a reason to withhold consent for an energy NSIP . The court found that this argument did not, however, render the Secretary of State’s decision unlawful on the plain meaning of the national policy [84 – 86]. The policy meant simply that “CO2 emissions are not, of themselves, an automatic and insuperable obstacle to consent being given for any of the infrastructure for which EN-1 identifies a need and establishes a presumption in favour of approval” .
However, the court also held that the policy did not prevent greenhouse gas emissions from being taken into account as a consideration attracting weight in a particular case; precisely how much weight would be a matter for the decision-maker . This differed from the conclusion of the High Court below, which had erroneously held that greenhouse gas emissions were incapable of being treated as a freestanding reason for refusal.
On the final ground of appeal, the Court of Appeal held that the Secretary of State had adopted the correct approach to the balancing exercise under section 104(7) of the Planning Act 2008, which determines whether an exception to the general requirement that an application for a DCO should be determined in accordance with any national policy statement. The appellant contended that the Secretary of State had erred by taking the same approach to balancing the question of need against greenhouse gas emissions as she had been required to assess when considering the national policy statements . However, the court emphasised that the exercise in section 104(7) was not expressed as excluding considerations arising from national policy itself, and did not restrain the Secretary of State from bringing into account the need for a particular type of infrastructure recognised by national policy . Accordingly, the appeal was dismissed.
Extent of greenhouse gas emissions required to be assessed under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017
A further context in which climate change issues have come before the higher courts is the extent to which greenhouse gas emissions are required to be assessed as part of an Environmental Impact Assessment describing the likely significant effects (direct and indirect) of a development. This formed the central issue in R(Finch) v Surrey County Council  EWHC 3566 (Admin). The High Court considered whether the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (“the EIA Regulations”) required a developer, when applying for a grant of planning permission to retain and expand a pre-existing oil well site and to drill four new oil wells, to assess the greenhouse gas emissions which would inevitably result from the later combustion of end products emanating from the crude oil produced at the site. Such greenhouse gas emissions are referred to as “downstream emissions”.
Regulation 18(b) of the EIA Regulations requires that an environmental statement must, at least, include “a description of the likely significant effects of the proposed development on the environment”. The parent EIA Directive (Directive 2011/92/EU as amended by Directive 2014/52/EU) defines “the project” for the purposes of assessing environmental effects in Article 1(2)(a) in the following way:
- the execution of construction works or of other installations or schemes,
- other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources.”
Paragraph 5 of Schedule 4 to the EIA Regulations further specifies:
- “A description of the likely significant effects of the development on the environmental resulting from, inter alia:(a) the construction and existence of the development […]
(a) the construction and existence of the development […]
(f) the impact of the project on climate (for example the nature and magnitude of greenhouse gas emissions) and the vulnerability of the project to climate change; […]”
The appellant argued that the downstream greenhouse gas emissions – those which would be caused by the combustion of the oil produced by the proposed development – were “likely significant effects of the development” and formed part of “the impact of the project on climate”. Accordingly, the EIA Regulations required the developer, as part of the Environmental Impact Assessment, to assess the nature and magnitude of the downstream emissions.
In dismissing the appeal and deciding that there was no requirement for the downstream emissions of the proposed development to be assessed as part of the Environmental Impact Assessment, Holgate J concluded at  that:
“In my judgment, the fact that the environmental effects of consuming an end product will flow “inevitably” from the use of a raw material in making that product does not provide a legal test for deciding whether they can properly be treated as effects “of the development” on the site where the raw material will be produced for the purposes of exercising planning or land use control over that development. The extraction of a mineral from a site may have environmental consequences remote from that development but which are nevertheless inevitable. Instead, the true legal test is whether an effect on the environment is an effect of the development for which planning permission is sought. An inevitable consequence may occur after a raw material extracted on the relevant site has passed through one or more developments elsewhere which are not the subject of the application for planning permission and which do not form part of the same “project”.”
It should be noted that the claimant in Finch was granted permission to appeal to the Court of Appeal in March 2021, in view of the “considerable public concern” associated with the emission of greenhouse gases and the “far reaching ramifications” of the High Court’s conclusions in a wide range of planning contexts. The appeal is due to be heard in mid-November 2021. Accordingly, the legal position on the absence of any requirement for developers to account for downstream greenhouse gas emissions in Environmental Impact Assessments may well develop in the near future.
Further, the question of whether downstream emissions are required to be taken into account as part of an Environmental Impact Assessment should be firmly distinguished from the wider question of treating the impact and extent of downstream emissions as a material consideration in planning decision-making. Given that it is long-established that the range of potentially relevant planning issues is very wide (Derbyshire Dales District Council v Secretary of State for Communities and Local Government  EWHC 1729 (Admin) at ), the decision in Finch would not operate to preclude a planning decision-maker taking into account the downstream emissions caused by a proposed development where, in the view of the decision-maker, such emissions were a material planning consideration.
Relevance of the Paris Agreement
Following the decision of the Supreme Court in R(Friends of the Earth & Plan B Earth) v Heathrow Airport Ltd  UKSC 52 last year, it is clear that for the purpose of designating a national policy statement and applying section 5(8) of the Planning Act 2008, the fact that the UK has ratified the Paris Agreement is not of itself a “Government Policy” .
However, this does not mean that the Paris Agreement cannot be a material consideration, potentially of crucial relevance, in public law decision-making. Outside of the planning context in a case concerning the lawfulness of the UK Emissions Trading Scheme, Dove J observed in R(Elliot-Smith)  EWHC 1633 (Admin) at :
“It appears to be common ground that, in principle, the Paris Agreement was a material consideration in the formulation of the UK ETS and that it was taken into account. I have no difficulty in accepting that proposition, bearing in mind both the relationship between the [Climate Change Act 2008] and the Paris Agreement, and also the regular referencing of the Paris Agreement throughout the Response. The Paris Agreement is an obvious instrument to be reflected in the architecture of national measures to address climate change and abate greenhouse gas emissions.”
19 October 2021