R (Friends of the Earth) v Secretary of State for Transport and Others [2020] EWCA Civ 214

The UK’s “Airports National Policy Statement: new runway capacity and infrastructure at airports in the south east of England” (ANPS), which provided for the extension of Heathrow Airport, has been held to be unlawful because the 2015 Paris Agreement was not considered in its development.

On 27 February 2020, the Court of Appeal of England and Wales (Court) unanimously ruled that the ANPS was invalid and its designation as a national policy statement was unlawful on several grounds involving climate change.  These all relate to a failure to take into account the UK Government’s commitment to the provisions of the 2015 Paris Agreement. Under the Paris Agreement, parties have committed to the long-term target of achieving net-zero greenhouse gas (GHG) emissions by 2050. 

The ANPS was designated as a national policy statement for the purposes of the Planning Act 2008 (UK) (Planning Act) by the Secretary of State for Transport (Secretary) on 26 June 2018.  Critically, the ANPS provided for the proposed expansion of capacity at Heathrow Airport by the addition of a third runway, which would significantly increase GHG emissions at the airport and from domestic and international air travel.

The controversial policy was subsequently subject to a number of challenges brought by five local authorities, the Mayor of London, Greenpeace Ltd, Friends of the Earth Ltd and Plan B Earth. Notably, the challenges relate to the legality of the administrative process followed by decision-makers,¹ and the Court was not required to consider the merits of the ANPS.

Although there were a number of grounds of judicial review raised in the proceedings, the Court of Appeal upheld the appeal solely on the climate change grounds. 

Firstly, the Planning Act² required that the reasons for the policy set out in the ANPS “must … 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”. At the time of designation of the ANPS, the UK had legislated a 2050 target of achieving at least an 80% reduction in its GHG emissions from 1990 levels under the Climate Change Act 2008 (UK).³ The Secretary took this target into account but, on legal advice, chose not to take the Paris Agreement into account at all.⁴

The Court determined that the UK Government’s commitment to the Paris Agreement was clearly part of “Government policy” by the time of the designation of the ANPS in 2018 on the basis that the UK Government had:

1. ratified the Paris Agreement in November 2016; and
2. made “firm statements re-iterating Government policy of adherence to the Paris Agreement by relevant Ministers”.⁵ 

On that basis, the Court found that “[t]he Paris Agreement ought to have been taken into account by the Secretary of State in the preparation of the ANPS and an explanation given as to how it was taken into account, but was not”.⁶

Secondly, the Court found that the designation of the ANPS was unlawful because the Secretary failed to ask the question of whether he could consider the Paris Agreement pursuant to his obligations under Planning Act.⁷ The Court considered that if he had exercised that discretion, the only reasonable view open to the Secretary was that the Paris Agreement “was so obviously material” that it had to be taken into account.⁸

Finally, the Secretary’s failure to consider the Paris Agreement was also found to have breached the duty to undertake a lawful strategic environmental assessment,⁹ which required the Secretary to consider unincorporated international agreements relevant to the program or plan.¹⁰   

Accordingly, the Court declared the ANPS to be unlawful until the Secretary has undertaken a review of the policy.¹¹ In addition to the Paris Agreement,¹²  in reviewing the ANPS, the Secretary will need to consider, in accordance with the precautionary principle, the non-carbon dioxide effects which are expected to be twice that of the carbon dioxide effects.¹³ After completing a review of the ANPS, the Secretary must amend the statement, withdraw the statement’s designation as a national policy statement, or leave the statement as it is.¹⁴   

However, a national policy statement supporting the expansion of the Heathrow Airport is not necessarily incompatible with the UK’s commitment to reducing carbon emissions and mitigating climate change under the Paris Agreement.¹⁵ That question remains live and for the Secretary to determine.¹⁶

This decision has the potential to have broad implications for the approval and financing of large infrastructure projects. It illustrates that where required by statute to consider climate change policies in making planning instruments or determining approvals for major infrastructure projects, decision-makers may be required to consider any commitments made under international agreements such as, the Paris Agreement. This is the case even where those commitments are stricter than the commitments adopted under domestic laws. However, the weight given to those commitments will be a matter for the decision-maker.

We have published a wider update on developments in climate change litigation earlier this month (available here) and will publish another update in the series later in the year.