Case name:    Plan B Earth and Others v. Secretary of State for Transport (re Heathrow Airport expansion)

Jurisdiction:        United Kingdom

Type of claim:        Claim against a project permission

Summary of result:    Claim dismissed by Supreme Court upon appel.

Judgment final:        Yes.

 

Court instances

Court	Type of decision	Summary of decision
High Court of Justice Queen’s Bench Division Divisional Court Judgment of 1 May 2019 [2019] EWHC 1070 (Admin)	Judgment	All claims dismissed. (Partly, permission to bring claims for judicial review was refused. Partly, permission to bring claims for judicial review was granted, but the substantive application was refused.)
Court of Appeal Judgment of 27 Feb 2020 Case Nos. C1/2019/1053, C1/2019/1056 and C1/2019/1145	Decision on appeal against first instance judgment	National policy statement supporting the expansion of Heathrow Airport is declared unlawful.
Supreme Court of the United Kingdom Judgment of 16 Dec 2020, [2020] UKSC 52	Decision on appeal	Decision by the Court of Appeal overturned and claim dismissed.

 

Source of claims 

Planning Act 2008 (failure to consider national commitments under the Paris Agreement as relevant national policy).

European Union Directive on the Strategic Environmental Assessment.

 

Summary of Judgment

Note: This summary will focus only on climate related aspects of the case.

 

Facts and claims of the parties

The case before the courts consists of four separate claims by the non-governmental organization Friends of the Earth Limited, the charity Plan B Earth, as well as eight other claimants including the Mayor of London and some London Boroughs. The claimants oppose the construction of a third runway at Heathrow Airport (London).

On 26 June 2018, the Secretary of State for Transport designated the “Airports National Policy Statement: new runway capacity and infrastructure at airports in the South East of England” (“the ANPS”), according to section 5 of the Planning Act 2008. The ANPS sets out the Government’s policy supporting a third runway for Heathrow Airport. This designation decision in the ANPS is the subject-matter of the legal challenge.

Among other things, the claimants alleged negative impacts of the project on air quality, on natural habitats of flora and fauna, as well as a breach of Article 8 of the European Convention on Human Rights (right to private life) and Article 1 of the First Protocol to the European Convention on Human Rights (protection of property) in relation to issues of noise and air quality. [See summary of the individual grounds in Annex A to the Divisional Court judgment].

Regarding impacts on climate change, the claimant Plan B Earth specifically alleged that the ANPS was in breach of sections 5(8) and 10 of the Planning Act 2008 because it failed to take account of the commitment made under the Paris Agreement. Art. 2(1)(a) of the Paris Agreement sets out a global target of limiting the increase in temperature to “well below” 2°C, and pursuing efforts to limit the temperature increase to 1.5°C. The Secretary of State acted unlawfully and irrationally in not taking into account that commitment; and in relying on the global temperature limit of 2°C instead of the now scientifically recognized 1.5°C limit. The Secretary of State further failed to act in accordance with sec. 3 of the Human Rights Act 1998, which requires legislation to be read and given effect in a way that is compatible with the European Convention on Human Rights. [Divisional Court Judgment at para 603].

The claimant Friends of the Earth alleged that the ANPS failed to give reasons for how it took account of the Climate Change Act 2008 carbon emissions target, thereby breaching section 5(7) and (8) of the Planning Act 2008. Friends of the Earth claimed that the ANPS was internally contradictory or otherwise unclear regarding six aspects, inter alia whether international aviation emissions should be taken into account with regard to the national carbon reduction targets, and what was meant by “material impact on the ability of the Government to meet its carbon reduction targets”. [Divisional Court Judgment at paras 626 f.].

Friends of the Earth further alleged that sec. 10(3) of the Planning Act 2008 requires the Secretary of State to have regard to “the desirability of mitigating, and adapting to, climate change”, which includes taking account of the ability of future generations to meet their needs on the basis of up to date information and analysis [Divisional Court Judgment at paras 636 f.].

The claimants sought declaratory relief, specifically a declaration that the Secretary of State acted unlawfully in violation of the Planning Act 2008.

Some background on UK law

The Planning Act 2008 establishes a unified development consent procedure for nationally significant infrastructure projects including certain airport-related development. Sec. 5(1) of the Planning Act 2008 gives the Secretary of State the power to designate a National Policy Statement (NPS) for a development project. Under sec. 10(3)(a), the Secretary of State must have regard to the desirability of [inter alia] mitigating and adapting to climate change.

The NPS does not replace the Development Consent Order, which is the official permit necessary to start implementing the project. Rather, the NPS sets the policy framework within which an application for a Development Consent Order must be determined.

Applications for a Development Consent Order must be made to the relevant Secretary of State. Under sec. 104(3) of the Planning Act 2008, when determining an application for a Development Consent Order, the Secretary of State must decide in accordance with any relevant NPS, except to the extent that one or more of the subsequent subsections apply. The named subsections relate to, inter alia, a case where deciding the application in accordance with the NPS would lead to the United Kingdom being in breach of any of its international obligations, or where the adverse impact of the proposed development would outweigh the benefits.

In the case of the National Policy Statement for Heathrow Airport, para. 5.82 of the ANPS states: “Any increase in carbon emissions alone is not a reason to refuse development consent, unless the increase in carbon emissions resulting from the project is so significant that it would have a material impact on the ability of Government to meet its carbon reduction targets, including carbon budgets.”

The UK set its greenhouse gas emissions reduction targets in the Climate Change Act 2008. The Act establishes a reduction target for the United Kingdom of 80% from 1990s level by the year 2050. This target was consistent with the global temperature limit of 2°C in place in 2008. After adoption of the Paris Agreement in 2015, the UK Committee on Climate Change reviewed the national reduction target in the Climate Change Act 2008. In its report of October 2016, the Committee found that current policy in the UK was not enough to meet even the targets set by the Climate Change Act 2008. The Committee would therefore not recommend changing the target now, but instead focus on meeting the existing target.

In 2019, the “Climate Change Act 2008 (2050 Target Amendment) Order 2019” amended the target figure from 80% to 100% reduction by 2050.

Under sec. 30(1) of the Climate Change Act 2008, greenhouse gas emissions from international aviation do not count as emission from UK sources. However, sec. 10(2)(i) requires the Secretary of State and the Committee on Climate Change to take such emissions into account for the purpose of carbon budgets.

Divisional Court Judgment

The Divisional Court first laid out that English law is a dualist legal system under which international law or an international treaty has legal force at the domestic level only after it has been implemented by a national statute. Therefore, any obligation imposed on the UK Government by the Paris Agreement has no effect in domestic law. Also, the Paris Agreement imposes no obligation upon any individual state to limit global temperatures or to implement the objective in any particular way. [Divisional Court Judgment at paras. 606 f.].

Parliament has determined the contribution of the UK towards global goals in the Climate Change Act 2008, based on a global temperature limit in 2050 of 2°C above pre-industrial levels. While this policy may be lagging behind current scientific knowledge, the Court held that the Secretary of State cannot unilaterally change the target which was set by Parliament [Divisional Court Judgment at paras 608 f.]. The assessment of any change to the target is a matter for political judgment, taking into consideration not only the evolving information and analysis in respect of climate change, but also the economic and social consequences and the reduction effort of other states [Divisional Court Judgment at para 611].

The Court next rejected the argument by the claimant Plan B Earth that the Climate Change Act 2008 was only one component of government policy, while the Paris Agreement temperature limit of 1.5ºC and “well below” 2°C was also a relevant consideration. Neither policy, nor international agreements, the Court found, can override a reduction target set in a statute. [Divisional Court Judgment at paras. 613-15]. The Secretary of State did not err in taking the Climate Change Act 2008 targets into account; indeed, he would have erred if he had not taken into account the targets as fixed by Parliament. The Secretary of State was not obliged to foreshadow a future parliamentary decision as to the domestic implementation of the Paris Agreement [Divisional Court Judgment at paras. 618 f.].

Since the interpretation of the Climate Change Act 2008 was clear, the Court further found that its application by the Secretary of State did not infringe sec. 3 of the Human Rights Act 1998 [Divisional Court Judgment at paras 621 f.].

The Court then discussed the submissions by the claimant Friends of the Earth that the ANPS was in breach of section 5(7) and (8) of the Planning Act 2008.

Sec. 5(7) and (8) of the Planning Act 2008 provide:

“5(7) [An NPS] must give reasons for the policy set out in the statement.

(8) The reasons must (in particular) include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change.”

Considering that by their nature, planning policies are full of broad statements of policy, the application of which often depend upon a later and distinct exercise of judgment by a decision-maker, the Court found the reasons given in the ANPS to be sufficient to satisfy the requirements under sec. 5(7) and (8) of the Planning Act 2008 [Divisional Court Judgment at paras 629 f.].

The Court also did not find the ANPS to be internally contradictory or unclear. It was clear that the ANPS, when referring to the ability of the Government to meet its carbon reduction targets, included emissions of greenhouse gases from international aviation. The meaning of the phrase “material impact on the ability of the Government to meet its carbon reduction targets” is to be determined at the later stage of the Development Consent Order application and not at the abstract level of a policy document. [Divisional Court Judgment at para 631].

The Court further rejected Friends of the Earth’s claim that sec. 10(3)(a) of the Planning Act 2008 required the Secretary of State to take into account up to date information and analyses.

Sec. 10(3)(a) of the Planning Act 2008 provides:

“(1) This section applies to the Secretary of State’s functions under sections 5 and 6.

(2) The Secretary of State must, in exercising those functions, do so with the objective of contributing to the achievement of sustainable development.

(3) For the purposes of subsection (2) the Secretary of State must (in particular) have regard to the desirability of—

(a) mitigating, and adapting to, climate change;…”.

It was clear from legislative history, the Court held, that sec. 10(3) had to be read together with the Climate Change Act 2008, which was passed by Parliament in order to mitigate and adapt to climate change. While the Secretary of State was not required to ignore additional information and international commitments, he had discretion as to whether to take them into account or not. If scientific circumstances change, the Secretary of State may review the ANPS; and, in any event, this issue will be re-visited at the stage of the Development Consent Order on the basis of the then up to date scientific position. [Divisional Court Judgment at paras 633-649].

The Court therefore refused permission to both Plan B Earth and Friends of the Earth to bring claims for judicial review of the ANPS. The Court also rejected the other two claims, partly by refusing permission to bring the claims for judicial review, partly by refusing the substantive application.

Court of Appeal Judgment

All but one of the claimants appealed the decision by the Divisional Court.

The Court of Appeal started out by making clear that its task was not to decide whether and how Heathrow should be expanded. That is ultimately a political question for the government of the day. Rather, the court is required to consider whether the government’s policy in favour of the development of a third runway was produced lawfully, which is an entirely legal question. [Court of Appeal Judgment at para 2].

The Court then reviewed the claims regarding climate change under four principle headings:

• Did the Government’s commitment to the Paris Agreement constitute government policy on climate change, which the Secretary of State was required to take into account?
• Was the designation of the ANPS unlawful because the Secretary of State acted in breach of section 10(3) of the Planning Act 2008?
• Did the Secretary of State breach the EU Directive on the Strategic Environmental Assessment by failing to consider the Paris Agreement?
• Did the Secretary of State err in his consideration of non-CO2 impacts and the effect of emissions beyond 2050?

Regarding the first question, the Court found that the GHG reduction targets set in the Climate Change Act 2008 did not preclude the government from taking into account the Paris Agreement when designating the ANPS [Court of Appeal Judgment at para. 203]. Indeed, various official ministerial statements demonstrated that it was the government’s expressly stated policy to adhere to the Paris Agreement and limit temperature rise to well below 2°C, and to pursue efforts to limit it to 1.5°C [Court of Appeal Judgment at para. 216].

Therefore, under sec. 5(8) of the Planning Act 2008, the Secretary of State was obliged to take into account the UK’s commitment to the Paris Agreement as part of government policy [Court of Appeal Judgment at para. 222]. Sec. 5(8) does not require the Secretary of State to follow or act in accordance with government policy. However, it requires that the ANPS should explain how the Secretary of State has “taken into account” government policy. It is necessarily implicit in that obligation that the Secretary of State must indeed first have taken that government policy into account. [Court of Appeal Judgment at para. 223]. The term policy is necessarily broader than legislation, and there is no reason to limit it to the requirements of the Climate Change Act 2008 [Court of Appeal Judgment at para. 224].

The failure of the Secretary of State to take the Paris Agreement into account, the Court found, was based on a wrong legal assessment that he was limited to the targets of the Climate Change Act 2008. This amounts to a material misdirection of law at an important stage in the process. That misdirection then fed through the rest of the decision-making process and was fatal to the decision to designate the ANPS itself. [Court of Appeal Judgment at para. 227].

This finding was not, the Court further explained, in breach of the dualist system of international obligations and international law, and did not, through the back door, transform the Paris Agreement into a nationally binding obligation. It is clear that an international treaty cannot, without more, change domestic law; otherwise government would be able to change the law without the consent of Parliament. Rather, by enacting sec. 5(8) of the Planning Act 2008, it was Parliament itself which had obliged the government to take its own policy decisions into account. [Court of Appeal Judgment at para. 230].

Furthermore, the Court found the Secretary of State to be in breach of sec. 10 of the Planning Act 2008. If the Secretary of State had not mistakenly believed that he was not permitted to take into account the Paris Agreement, but had realized his discretion in this matter, the only reasonable view open to him was that the Paris Agreement was so obviously material that it had to be taken into account. [Court of Appeal Judgment at paras. 236 f.].

The Court also found the Secretary of State to be in breach of the requirements of the European Union Directive on the Strategic Environmental Assessment. This directive requires a EU member state to conduct an environmental impact assessment before carrying out certain plans or programmes. The environmental assessment should provide information on, inter alia, the environmental protection objectives, established at international, EU or state level, which are relevant to the plan or programme and the way those objectives and any environmental considerations have been taken into account during its preparation. While acknowledging that this provision leaves a wide margin of discretion to the Secretary of State in deciding what is “relevant”, the Court held that the Paris Agreement was so obviously relevant that it had to be taken into account. [Court of Appeal Judgment at para. 246].

Finally, the Court found that the Secretary of State was obliged to consider both the non-CO2 climate impacts of aviation and the effects of emissions beyond the year 2050 in his assessment. The Court rejected the argument that current scientific knowledge was too uncertain to be capable of accurate measurement at that stage. In line with the precautionary principle, and as common sense might suggest, scientific uncertainty is not a reason for not taking something into account at all, even if it cannot be precisely quantified at that stage. [Court of Appeal Judgment at paras. 248-261].

The Court therefore declared the ANPS designation decision unlawful [Court of Appeal Judgment at para. 280]. The Court emphasized, however, that it did not follow that when reconsidering the designation decision, the Secretary of State was obliged to act in accordance with the Paris Agreement or to reach any particular outcome. The only legal obligation is to take the Paris Agreement into account when arriving at his decision [Court of Appeal Judgment at para. 238].

Supreme Court Judgment

On appeal by Heathrow Airport Ltd, the owner of the airport, the Supreme Court overturned the decision by the Court of Appeal and dismissed the claim.

The main question in which the Supreme Court deviated from the Court of Appeal was whether the Secretary of State was obliged to consider the emission reduction targets of the Paris Agreement beyond the national targets set out in the Climate Change Act 2008. While the Court of Appeal had assumed that the Paris Agreement targets on its own were a relevant aspect to be considered, the Supreme Court disagreed. The following findings are all based on a variation of this general disagreement.     

While sec. 5(8) of the Planning Act 2008 requires the Secretary of State to take account of Government policy relating to the mitigation of, and adaptation to, climate change, the Court held that this is to be understood in a narrow sense. It only includes formal written statements of established policy. Otherwise, civil servants would be expected to search for opinions a minister may have voiced at some point, and decide whether this might be characterised as “policy”. [Supreme Court judgment at paras 105-06]. 

At the time when the Secretary of State designated the ANPS, the Government’s approach on how to adapt its domestic policies to the goals of the Paris Agreement was still in a process of development. This cannot be considered an established policy in the sense of sec. 5(8) of the Planning Act 2008. [Supreme Court judgment at para 111].  

The Court further held that by not taking into account the Paris Agreement goals, the Secretary of State did not violate the right to life and family life under Art. 2 and 8 of the European Convention on Human Rights. Any such violation would – if at all – be caused by the Development Consent Order still to be issued, but not by the ANPS which is a pure policy statement. [Supreme Court judgment at para 113].   

With regard to sec. 10 of the Planning Act 2008, according to which the Secretary of State must act with the objective of contributing to the achievement of sustainable development, the Court held that the Secretary of State had not breached the provision. The UK set its greenhouse gas emissions reduction targets in the Climate Change Act 2008. After adoption of the Paris Agreement in 2015, the UK Committee on Climate Change reviewed the national reduction target, but did not recommend to change it. Instead, focus should be on meeting the existing target. When the Secretary of State based his decision on the targets of the Climate Change Act 2008, he had taken these considerations into account. [Supreme Court judgment at paras 124-25]. He was not legally obliged to go beyond the Climate Change Act 2008 (the Court notes that it would still be possible to reflect developing sciences at the later stage of the Development Consent Order). [Supreme Court judgment at para 132]. 

The Court also pointed out that the carbon emissions associated with the two alternative planning options were similar to the Heathrow expansion option. The only way for the Secretary of State to avoid these emissions would have been to not follow any of these options. Given the proven need for increased air travel capacity, the Secretary of State did not act irrationally in deciding that one of the options should be pursued. [Supreme Court judgment at para 133]. 

Furthermore, the Court found that the Secretary of State had not breached provisions of the European Union Directive on the Strategic Environmental Assessment. The Directive allowed for discretion as to which information to include in the Environmental Assessment. The purpose of the Assessment was to give the public an opportunity to comment on the impacts of the proposed project on the environment. This purpose was fulfilled in the case at hand, as the Government had given its view on the carbon emissions in relation to the project, and the public had been able to comment on the Paris Agreement in the course of the consultation. [Supreme Court judgment at para 147].   

Finally, the Court found that the Secretary of State did not act irrationally when it decided not to assess the emissions the project would cause beyond the year 2050 against a national policy which had yet to be determined. [Supreme Court judgment at para 156]. He also did not act irrationally by not considering the non-CO2 emissions of aircrafts at this stage, because there was a high degree of uncertainty with regard to their effects on the climate, and because these effects could still be considered at the later stage of the Development Consent Order. [Supreme Court judgment at paras 159-65].