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

Summary:

Plan B Earth, a charity with the mission to realize the goals of the Paris Agreement on climate change, has filed a climate change lawsuit against the Secretary of State for Business, Energy, and Industrial Strategy (Secretary of State). Plan B Earth is joined in the lawsuit by 11 citizen claimants ranging in age from 9 to 79 who are impacted by climate change in a variety of ways. The claimants allege that the Secretary of State violated the Climate Change Act 2008 (the 2008 Act) and other law by failing to revise a 2050 carbon reduction target in light of new international law and scientific developments.

On December 8, 2017, the claimants filed a claim form and a document listing their grounds for judicial review at the High Court of Justice Administrative Court. They note that the 2008 Act set a carbon emissions reduction target for the year 2050 that is at least 80% lower than the aggregate total of the UK’s greenhouse gas emissions in 1990 (the 2050 target). This 2050 target was consistent with limiting average warming to 2 degrees C above pre-industrial levels. The claimants argue that the Secretary of State should make the 2050 target more ambitious to reflect scientific developments since 2008 and the Paris Agreement’s intention to limit average warming to 1.5 degrees C. Under Section 2 of the 2008 Act, the Secretary of State has the authority to revise the target in light of scientific developments and international law.

Claimants present five grounds for seeking judicial review of the Secretary of State’s failure to revise the 2050 target: (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 and / or inappropriately weighs considerations including the risks of global climate change and predictions of future technical innovation; (4) it violates the Human Rights Act 1998; and (5) it breaches the public sector equality duty set out in Section 149 of the Equality Act 2010.

Claimants seek declaratory relief that the Secretary of State acted unlawfully in violation of his responsibilities under the 2008 Act and a “mandatory order that the Secretary of State revise the 2050 target in accordance with the purpose of the 2008 Act and the UK’s international law obligations, ensuring, at a minimum, that the 2050 target commits the UK to an equitable contribution the Paris Agreement objective and that it conforms to the precautionary principle.” They also seek what other relief the court deems appropriate and costs.

In February, 2018, the claimants' application for judicial review was denied on all five grounds. The claimants renewed their application for review. On March 20, 2018, a permission hearing took place at the Royal Courts of Justice in the Strand to determine if the case was strong enough to merit a full hearing. The hearing was adjourned after the Justice decided that the complexity of the issues would require a full-day permission hearing. The Justice also requested a more detailed statement from the Committee on Climate Change, an independent, statutory body established under the Climate Change Act 2008. The Committee is an interested party in the litigation.

On July 20, 2018, the High Court found the claims were not arguable and denied permission for the case to proceed. Plan B Earth appealed the decision on multiple grounds, including alleging that the judge misinterpreted Article 2(1)(a)of the Paris Agreement. Appellants argue that the judge incorrectly read this provision to allow for a range of ambition rather than holding the UK for responsible for “[h]olding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels.” Accordingly, appellants further argue that the judge incorrectly found the current UK 2050 climate target compatible with the Paris Agreement due to this misinterpretation of required ambition.

On January 25, 2019, the Court of Appeal rejected Plan B's appeal of the High Court's denial to hear the case, marking the end of the appeal process. The court concluded that none of the 7 stated grounds had a real prospect of success. The court did not find an error in law in regard to an alleged failure to exercise discretion to amend the 2050 target, nor did the court find that the Secretary of State misunderstood the Paris Agreement or the advice of the Committee on Climate Change. While acknowledging that a governmental response to the need for environmental protection engages human rights in general, the court declined to find that relevant given its other findings that officials exercised proper discretion and understanding of the Paris Agreement and climate-related advice.

At Issue: Government’s alleged violation of the Climate Change Act 2008 for failure to revise its 2050 carbon emissions reduction target in light of the Paris Agreement and the latest science