High Court finds the UK’s Carbon Budget Delivery Plan Unlawful and requires the Secretary of State to produce a new plan within 12 months
Cornerstone Climate, Planning and Environment, Public Law and Judicial Review
In a judgment handed down on 3 May, Mr Justice Sheldon upheld the judicial review challenge by Friends of the Earth, ClientEarth and the Good Law Project to the lawfulness of the Carbon Budget Delivery Plan (‘CBDP’). The CBDP is required by the Climate Change Act 2008 (‘CCA’) and it outlines how the Government considers its policies and proposals will enable the carbon budgets set under the CCA to be met. The carbon budgets represent critical staging posts on the path to net zero.
The CBDP replaced the previous Net Zero Strategy (“NZS”), both of which concerned the sixth carbon budget (2033-2037). The High Court ruled in July 2022 that, in preparing the NZS, the Secretary of State had not lawfully complied with the obligation in section 13(1) CCA (requiring the Secretary of State to “prepare such proposals and policies as [she] considers will enable the carbon budgets…to be met”) by failing to take obviously material considerations into account, including the contributions individual proposals and policies were expected to make to meet the carbon budgets and the risks to delivery.
There were three different bases on which the latest claim to the CBDP succeeded.
First, Mr Justice Sheldon held that the Secretary of State had proceeded on the basis that each of the planned policies and proposals in the CBDP would be delivered in full (§§119-125). The Judge held at §127 that this was irrational, because the Secretary of State’s decision was based on reasoning which was “simply not justified by the evidence” (citing R(Wells) v Parole Board [2019] EWHC 2710 (Admin). The true factual position, set out in §§63-64 and §126, was that not all of the proposals and policies would be delivered in full.
It is notable that, in coming to this conclusion, Mr Justice Sheldon accepted the Secretary of State’s submission that the Court should apply a low intensity of review to the section 13(1) CCA assessment (§141). In the July 2022 decision determining the Net Zero Strategy was unlawful Mr Justice Holgate also considered the questions of justiciability / intensity of review and said (at §192) “Although the court may need to tread carefully in relation to some issues and apply an enhanced margin of appreciation, s.13(1) does not merely confer a power on the Secretary of State. It imposes a duty, compliance with which may be the subject of judicial review. If, for example…a legal challenge [was] brought on the grounds that the ‘split’ between quantitative analysis under s.13 was irrational…[the court] may insist, if it considers it appropriate, upon a sufficiently clear and full explanation of the reasoning process of the defendant and his officials, as a quid pro quo for that enhanced margin of appreciation” (citing R (Mott) v Environment Agency [2016] 1 WLR 4338 at §64).
Second, even if the Secretary of State did not make that assumption and instead had proceeded on the basis that the overall package of policies and proposals would deliver the emission savings in full (because over-delivery from some policies and proposals would balance out under-delivery from others), then his decision was still unlawful under section 13 CCA. This was because he was not provided with sufficient information as to the obviously material consideration of risk to the individual policies and proposals in the CBDP (§132). While there is no specific statutory requirement for risk information to be provided to the Secretary of State in particular ways (§117), on the basis of the information provided to him, the Secretary of State had no way of knowing which proposals and policies might not be delivered, or delivered in full. He could therefore not calculate what “over-delivery” was required, or whether this would be achieved.
Third, the Judge then turned to the requirement in section 13(3) CCA that “the proposals and policies, taken as a whole, must be such as to contribute to sustainable development”. He held at §146 that “sustainable development” was an “uncontroversial concept”, defined in R (Spurrier) v Secretary of State for Transport [2019] EW HC 1070 (Admin) at §635 “meeting the needs of the present without compromising the ability of future generations to meet their own needs.” Section 13(3) CCA requires an evaluation or assessment by the Secretary of State (§149), but the wording of the provision means that the evaluative assessment is required to meet a degree of certainty that the particular outcome will eventuate (§§150-151). In finding the CBDP was “likely” to contribute to sustainable development, the Secretary of State’s assessment had not met that level: on no reasonable view could it be said that “likely” means “must” (§152).
Finally, the judge rejected the submission that there was a breach of s.14 CCA, concluding that the Secretary of State was not required in her report to Parliament to provide information concerning the risk to individual proposals and policies.
Mr Justice Sheldon ordered that the Secretary of State lay before Parliament by no later than 2 May 2025 a fresh s.14 report which sets out the proposals and polices which the Secretary of State considers will enable the sixth carbon budget to met.
Nina Pindham, together with Catherine Dobson and led by David Wolfe KC appeared for Friends of the Earth. Robert Williams, together with Christopher Badger and led by Jonathan Moffett KC, appeared for the Secretary of State.
Nina and Robert are members of Cornerstone Climate, a cross-disciplinary practice group which offers specialist advice and representation in environment law and climate change litigation, drawing on our planning, environment, property, commercial, regulatory and public law teams.
- On 15th May 2024, Robert and Nina will be joined by Lord Deben, Lord Carnwath and Tom Burke in a webinar discussing the government’s strategies on achieving net zero, as part of Cornerstone’s Climate Month.
