The approvals climate is changing

17 March 2020
Lionel Hogg, Partner, Brisbane Fidelis McGarrigan, Partner, Adelaide

In proceedings[1] brought by environmental groups, councils and the Mayor of London, the English Court of Appeal has ruled unlawful a decision, to allow the expansion of Heathrow Airport by the construction of a third runway, because it did not take the United Kingdom government’s policy and commitments on climate change into account.

Background

For many years, it has been argued that England’s aviation capacity must increase to meet economic and other demands.

In response, the United Kingdom government designated a national policy statement to facilitate new runway capacity and infrastructure at airports in the South East of England, the Airports National Policy Statement (ANPS).  Heathrow Airport is seeking to expand its capacity in accordance with the policy by adding a third runway.

Further development at Heathrow is a matter of considerable public debate, intensified by concerns over the environmental costs of increasing capacity against a backdrop of concerted global efforts to combat climate change by reducing carbon emissions.  This has resulted in various public interest challenges to the national policy statement, by environmental groups and others, by way of judicial review.

National policy statements

In the United Kingdom, national policy statements set out the government’s objectives for the development of nationally significant infrastructure and provide the framework within which examining authorities make development recommendations to the Secretary of State for Transport, who must have regard to the relevant statement when determining an application for development consent.

National policy statements undergo a process of public consultation and parliamentary scrutiny before being designated.

Under the Planning Act 2008 (UK), a national policy statement 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”.[2]

The ANPS was designated by the Secretary of State on 26 June 2018.

The challenge

The essential issue before the court was whether the designation of the ANPS was unlawful because the Secretary of State failed to have regard to the United Kingdom’s commitment to the Paris Agreement.[3]

Administrative law is replete with examples of failing to consider relevant matters where the law mandates that a matter be considered.  The Planning Act clearly required that the ANPS should explain how the Secretary of State had taken into account government policy.  Implicit in that obligation is that the Secretary of State must first have considered the policy and its application.

In designating the ANPS, the Secretary of State considered the government’s targets under the Climate Change Act, domestic legislation of the United Kingdom.  However, the Secretary did not take the government’s commitments under the Paris Agreement, an international obligation, into account.

The government contended that consideration need be given only to existing domestic legal obligations and policy commitments on climate change as set out in the Climate Change Act (which does not address emissions from international aviation).  It was argued that the government had an “emerging strategy” and that a decision had been deferred on how the aviation sector could best contribute its fair share to emissions reductions at both national and global levels.  The Secretary of State did not ignore the Paris Agreement, or that there would be emerging material within government evidencing developing thinking on its implications, but the government had concluded that such material should not be taken into account, since it did not form an appropriate basis upon which to formulate the policies contained in the ANPS.

Decision

The court noted that the words “government policy” are words of ordinary English and should be applied in their ordinary sense.  There was no warrant in the legislation for limiting the phrase “government policy” to mean only the legal requirements of the Climate Change Act, the concept of policy being necessarily broader than legislation.

The government’s commitment to the Paris Agreement was clearly part of “government policy” by the time of the designation of the ANPS, both by the solemn act of ratification of the international agreement in November 2016 and in a series of firm statements by various Ministers re-iterating adherence to the agreement.

The court noted that the Planning Act does not require the Secretary of State to act in accordance with any particular policy, but it does require him to take that policy into account and explain how it has been taken into account.  None of that was ever done in the present case because the Secretary of State received legal advice that he did not have to take the Paris Agreement into account, and that he was legally obliged not to take it into account.  This constituted a clear misdirection of law, which fed through the rest of the decision-making process and was fatal to the decision to designate the ANPS itself.

The court also found that the Secretary of State’s decision failed on rationality grounds.  If he had appreciated having any discretion in the 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 even if not specifically mandated by statute.

The court concluded that the appropriate remedy was a declaration that the designation decision was unlawful, preventing the ANPS from having any legal effect unless and until the Secretary of State undertakes a review of it in accordance with the relevant statutory provisions.

The court did not find that a national policy statement supporting the project is necessarily incompatible with the United Kingdom’s commitment to reducing carbon emissions and mitigating climate change under the Paris Agreement, or with any other policy the government may adopt or international obligation it may undertake.  The consequence of the decision is that the government must reconsider the ANPS in accordance with the clear statutory requirements for it to have lawful effect.

Observations

The specific provisions of the United Kingdom’s planning legislation required that climate change considerations be addressed in this case.  On the facts, the case turned only on the ambit of those considerations, a typical judicial review.  The court did not suggest that public entities must infuse all decision-making with climate change considerations.

More generally, it is well established that, in addition to considerations which decision-makers clearly must or must not take into account as a matter of law, there are considerations that may be taken into account in the discretion of the decision-maker.  In the right case, rationality may demand that some relevant considerations are so obvious that they must be taken into account.  Climate change considerations could potentially enter this territory, particularly as public entities better articulate their policies and responses under increasing reporting imperatives (see our separate briefing, What is good for the goose…climate change disclosure and the public sector).

The law is a key tool in successful environmental activism and has long been so.  Climate change activism, potentially fuelled by class actions, is a new frontier of public sector accountability.  One of the great challenges for courts, in an era of lawfare, is to preserve institutional legitimacy in the face of efforts on all sides to have political decisions anointed or destroyed through the cloak of court fiat.  The Court of Appeal in this case was acutely aware that its decision – a routine administrative law finding – would be mere fodder and ammunition in a wider debate, going out of its way (almost excessively) to remark that its decision was neither a final decision on the airport expansion nor a treatise on the climate change impacts of airports, but merely the correction of a legally flawed approvals process.

Key takeaway

As the management of climate change risk assumes greater prominence, including in the public sector, decision-makers must remain vigilant to identify when climate change may be a relevant consideration and to deal with it appropriately.

 


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

[2] Planning Act 2008 (UK) s 5(8)

[3] The Paris Agreement is an agreement within the United Nations Framework Convention on Climate Change, dealing with greenhouse-gas-emissions mitigation, adaptation, and finance, signed in 2016.

 


Authored by:

Lionel Hogg, Partner

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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