Case name:    Plan B Earth and Others v. The Secretary of State for Business, Energy, and Industrial Strategy

Jurisdiction:        United Kingdom

Type of claim:        Challenge of federal government’s insufficient climate policy

Summary of result:    Permission to apply for judicial review refused.

Judgment final:        Yes

Court instances

Source of claims   

Violation of higher ranking national law (Climate Change Act 2008).

Fundamental Rights: Violation of fundamental rights to life, property, private and family life and freedom from discrimination under the European Convention on Human Rights (ECHR) Art. 2, Art. 8, Art. 14, and Art. 1 of the First Protocol.

Public sector equality duty as set out in s. 149 of the Equality Act 2010.

Summary of Judgment

Facts and claims of the parties

In December 2017, Plan B Earth, a charitable incorporated organization, and eleven individual claimants brought an application for permission to apply for judicial review of the government’s 2050 carbon targets. The Committee on Climate Change was named as interested party.

The Climate Change Act 2008 imposes a duty on the Secretary of State to ensure that the UK’s “net carbon account” for the year 2050 is at least 80% lower than the aggregate amount of UK emissions of carbon dioxide and other gases as they stood in 1990 (“the 2050 target”).

The 2050 target was tied to a global emissions pathway with an approximately 50% probability of keeping average global warming below 2°C above pre-industrial levels. The scientific consensus at the time was that it was necessary to limit warming only to 2°C to avoid dangerous climate change. Since the Climate Change Act 2008, the scientific evidence has significantly shifted. In the 2015 Paris Agreement, the former 2°C goal was replaced by a revised target of “well below 2°C” and pursuing efforts to limit the temperature increase to 1.5°C.

Section 2 of the Climate Change Act 2008 empowers the Secretary of State to revise the 2050 target to reflect significant developments in climate change science or in international law or policy. This should facilitate compliance with the UK Government’s obligation under the United Nations Framework Convention on Climate Change (UNFCCC) to “regularly update” its climate change policy.

The Committee on Climate Change is a body established under the Climate Change Act 2008 in order to advise the government on climate policy. After the UK’s ratification of the Paris Agreement, the Committee met to discuss the UK’s national response to the Paris Agreement. While acknowledging that the Paris Agreement commitment went further than the existing 2050 target, and that a new national long term target would be needed at some point, the Committee concluded, in a paper published on 13 October 2016, that the 2050 target should not be revised yet because there was no evidence that the UK could achieve a target consonant with the Paris Agreement. Rather, further action to strengthen the achievement of existing targets should be prioritized. (See Points of Claim at paras. 13 and 104).

The Secretary of State has subsequently not revised the 2050 target.

With their application for judicial review, the claimants seek:

1. a declaration that the Secretary of State has acted unlawfully by failing to revise the 2050 carbon target under the Climate Change Act 2008; and
2. a mandatory order that the Secretary of State revise the 2050 target in accordance with the purpose of the Climate Change Act 2008 and the UK’s international law obligations, ensuring, at a minimum, that the 2050 target commits the UK to an equitable contribution to the Paris Agreement objective and that it conforms to the precautionary principle.

The claimants allege that the ongoing failure to revise the 2050 target is unlawful for six reasons (see Points of Claim at para. 166):

1. It is ultra vires, because it frustrates the legislative purpose of the 2008 Act;
2. It is based on an error of law regarding the objective of the Paris Agreement;
3. It is irrational, because it fails to take into account relevant considerations and / or to give them adequate weight including the revised target of 1.5°C or “well below” 2°C, new scientific knowledge, and other international law obligations that must inform exercise of section 2 of the Climate Change Act 2008, specifically the principles of equity and precaution;
4. It violates the Human Rights Act 1998, in particular by disproportionately interfering with the right to life, the right to property, the right to a private and family life and the rights of those with certain protected characteristics to be free from discrimination;
5. It breaches the public sector equality duty set out in s. 149 of the Equality Act 2010.

The claimants particularly allege that the existing 2050 target does not accord with the principle of equity as laid out in Art. 4 of the Paris Agreement. On a basis of per capita shares of the remaining global carbon budget [that is, if all the emissions which could still be emitted before the world reaches the point of no return would be equally distributed to the global population on a per capita basis] the UK would consume three times its share of the remaining carbon budget. Other countries will have to compensate for that excess if the global budget is to be respected. (See Points of Claim at para. 93).

Regarding ground (a) above, the claimants argue that by conferring a statutory discretion on the Secretary of State as to amend the 2050 target, it is implicit that the Secretary of State is required to regularly review whether to exercise this discretion. The discretion must be exercised in accordance with the purposes of the Climate Change Act 2008, the most fundamental of which is to avoid harmful impacts of climate change. Maintaining a target inconsistent with the Paris Agreement is patently inconsistent with the purpose of the Climate Change Act 2008. (See Points of Claim at paras. 168-171).

Regarding ground (b), the claimants allege that the recommendation by the Climate Change Commission, and thus the decision of the Secretary of State acting at its advice, was based on an error of law, as it ignored the clear objective of the Paris agreement to limit temperature increase to well below 2°C, and to pursue efforts towards 1.5°C (see Points of Claim at paras. 183-189).

Regarding ground (c), the claimants argue that the ongoing failure to revise the 2050 target is irrational and demonstrates a failure on the Secretary of State’s part to take into account such relevant considerations as significant developments in international law or policy and scientific knowledge, and/or to make proper inquiries regarding relevant matters. The priority given to technical feasibility of an enhanced reduction target is not in line with the pre-legislative dialogue which makes clear that the only rational way to combat climate change is to aim to achieve what is necessary to avoid disaster. (See Points of Claim at paras. 190-204).

As for ground (d), the claimants allege that climate change is already having serious effects on the health of those impacted by rising temperatures, flooding, droughts and other extreme weather events, and it will continue to have unprecedented effects on human life, health and property. Under the Human Rights Act 1998 and the European Convention on Human Rights, particularly Art. 2 (right to life), Art. 8 (private and family life and home) and Art. 1 of the First Protocol (property rights), the state has a positive obligation to take action to protect these rights. (See Points of Claim at paras. 205-220). The Secretary of State should be accorded a narrow margin of discretion as to how to protect these rights because, inter alia, of the potentially devastating consequences of climate change, the commitments the UK Government has entered into internationally (see Points of Claim at para. 227).

Section 3 of the Human Rights Act 1998 requires the national court to interpret the Climate Change Act 2008 in a manner that is compatible with ECHR rights so far as it is possible to do so. This means reading section 2 of the Climate Change Act 2008 so as to compel the Secretary of State to amend the 2050 target to avoid infringements of human rights. (See Points of Claim at paras. 229-233).

Regarding ground (e), section 149 of the Equality Act 2010 requires the Secretary of State, when exercising his functions, to have due regard to the need to eliminate discrimination, harassment and victimization and advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it. The claimants argue that the Secretary of State failed to have due regard to the fact that climate change has disproportionate impacts on the health of those of older age and those who are disabled, as well as the fact that the young disproportionately bear the burden of climate change. (See Points of Claim at paras. 234-239).

In his grounds of defence, the Secretary of State for Business, Energy and Industrial Strategy alleges that the United Kingdom is a world leader in reducing carbon emissions (see Summary Grounds of Defence at paras 2 and 6-10). Pursuant to Section 2 of the Climate Change Act the Secretary of State has the power to amend the 2050 target if he considers it appropriate to do so (see Summary Grounds of Defence at para 3). This confers a discretion, but not a duty on the Secretary of State (see Summary Grounds of Defence at paras 5 and 45-53). The Secretary of State was thus entitled to decide not to make any changes to the 2050 target at this time. However, the government is committed to introducing a net zero emissions target at the appropriate time in the future. (See Summary Grounds of Defence at paras 3 and 29-30). The current 2050 target is already a stretching, if achievable target. It would not be good policy to set a new target now which – by reference to known and expected technology – was not capable of being met. (See Summary Grounds of Defence at para 35).

The Secretary of State further alleges that the Paris Agreement does not impose legal duties or obligations on the parties either individually or collectively. Rather, the approach is a “bottom up” one by which each party will determine their own contribution. Also, the collective long-term goal is to reach net zero emissions “in the second half of this century” and not by 2050. (See Summary Grounds of Defence at para 23).

The decision not to amend the 2050 target at the present time furthermore does not give rise to a breach of any specific individual’s human rights, as this can still be done at a later time. The government has a wide margin of appreciation as to which course of action to take domestically and as part of an evolving international discussion. (See Summary Grounds of Defence at para 70).

High Court Judgment

By order of 14 Feb 2018, the High Court of Justice refused permission to apply for judicial review. The Court holds that ground (a) above is unarguable because the Climate Change Act 2008 confers a discretionary power on the Secretary of State, not a duty. With regard to ground (b) the Secretary of State has not misinterpreted the Paris Agreement. The Secretary of State’s position can also not be characterized as irrational, as per ground (c). Neither is the Secretary of State’s position a breach of human rights, as alleged per ground (d). The government enjoys a wide margin of appreciation on policy issues such as this one. Regarding ground (e), the impact of climate change, including the heightened impact on certain groups in society, has been the subject of considerable investigation and assessment by the Commission on Climate Change and the Secretary of State. The claimants have not established any breach of the public sector equality duty.

After the claimants sought reconsideration of their application, the High Court, by judgment of 20 July 2018, upheld the refusal of permission to apply for judicial review. The Court holds that the Secretary of State was entitled to refuse to change the 2050 target at the present time (see High Court judgment at para 42). It is also clear that the Committee on Climate Change did not misunderstand the Paris Agreement and that there was no irrationality in the Secretary of State’s decision (see High Court judgment at paras 45-47). Furthermore, the Court holds that, given the government’s commitment to a net zero emission target at the appropriate time and the wide discretion afforded to the executive to assess the advantages and disadvantages of any particular course of action, there is no sustainable human rights challenge (see High Court judgment at para 49). Finally, the Court holds that while climate change affects people differently, this does not mean that the public sector equality duty requires a decision on emissions reduction to give differential considerations to the interests of those who may be affected (see High Court judgment at para 51).

Court of Appeal Judgment

Upon appeal by the claimants, the Court of Appeal, with decision of 22 January 2019, refused the application to stay the proceedings and to grant permission to apply for judicial review, confirming the reasons given by the High Court.