Plan B Earth and Others v. Secretary of State for Transport

Summary:

The UK Supreme Court overturned an appellate court decision, allowing the approval process for a third runway at Heathrow International Airport to move forward, on the grounds that the government sufficiently took into account climate impacts with regard to previous, less stringent, climate goals. The appellate court previously ruled that the government acted unlawfully by approving the expansion without considering the country's commitment to meeting the Paris Agreement goals.

In August 2018, Friends of the Earth and Plan B Earth, a British nonprofit with the mission to realize the goals of the Paris Agreement on climate change, filed suit against the Secretary of State for Transport Chris Grayling (“the Secretary”) alleging inadequate consideration of climate change impacts in regards to the expansion of Heathrow International Airport. (Additional claimants participated in the suit, but these two groups took lead on the climate-related claims; additionally, Heathrow Airport Limited and Arora Holdings Limited are interested parties.) The environmental claimants argued that the Secretary’s national policy statement supporting the expansion of Heathrow Airport (the Airport National Policy Statement or "the ANPS") violated the Planning Act 2008 (“the 2008 Act”) and the Human Rights Act 1998. The case went before the High Court of Justice Queen's Bench Division Administrative Court which refused all six climate change-related claims filed by the two environmental organizations.

The environmental claimants argued that since the 2008 Act requires the Secretary to pursue the objective of sustainable development and consider the desirability of mitigating and adapting to climate change, it further gives rise to implicit obligations to consider the advice of the Committee on Climate Change (“the CCC”), the government’s obligations under the Paris Agreement and commitment to review its national climate change targets in light of the Paris Agreement. Claimants maintained that the Secretary violated these implicit obligations by supporting the airport expansion without adequate consideration of the insufficiency of the current UK 2050 climate target (“2050 Target”), the UK’s commitments under the Paris Agreement, the CCC’s recommendations to review the 2050 Target, and government’s recent agreement to review the 2050 Target. Accordingly, they asserted the Secretary’s actions were both ultra vires and irrational. Plaintiffs additionally alleged violations of the Human Rights Act 1998. Claimants sought declaratory relief, specifically a declaration that the Secretary of State acted unlawfully in violation of of the 2008 Act.

The Divisional Court did not find that the Secretary had any obligations to consider the Paris Agreement climate targets, the science underlying those climate targets, or a more stringent potential future climate target necessary for meeting the Paris Agreement. The court was not persuaded by arguments that the 2008 Act’s climate action goals could be interpreted to make obligations under the Human Rights Act of 1998 inclusive of the Paris Agreement goals. In May 2019, the Divisional Court found that the Secretary had fulfilled his obligations to consider existing domestic climate targets and acted within his discretion.

The Court of Appeal granted plaintiffs the permission to appeal the lower court decision, writing that the "[i]mportance of the issues raised in these and the related proceedings is obvious." On appeal the environmental claimants pressed their claims that the government had violated the Planning Act and failed to conduct an adequate environmental assessment in accordance with EU law. On February 27, 2020, the Court of Appeal reversed the lower court. The court concluded that the Government had made a commitment to the Paris Agreement goals a part of "Government policy" by the time the ANPS was prepared. The Secretary, as a result, needed to expressly consider and address the Paris Agreement goals during the ANPS process (but did not need to act in accordance with the Paris Agreement or reach any particular outcome). The court held that by failing to consider the Paris Agreement the Secretary violated the Planning Act and the requirement to undertake a strategic environmental assessment pursuant to EC Council Directive 2001/42/EC. The court therefore concluded that the ANPS is invalid and must be redone. The court further ruled that in completing a new ANPS, the Secretary should consider the non-carbon dioxide climate impacts of aviation and the effects of emissions beyond 2050, both of which had been omitted from the original analysis. The court did not find it necessary to quash the ANPS, but rather determined that the appropriate form of relief was a declaration that the decision to approve a new runway was unlawful and the ANPS may not have legal effect unless and until the Secretary undertakes a review of it in accordance with the Planning Act.

On February 27, 2020, Heathrow Airport Limited and Arora Holdings Limited -- two private parties with an interest in the airport expansion -- appealed to the Supreme Court. The petition argued, among other things, that the Paris Agreement did not constitute "government policy" for purposes of the Planning Act at the date of designation of the ANPS, and that the case raised issues of general public importance warranting consideration by the highest court. On May 6, the Supreme Court agreed to hear the appeal.

On December 16, 2020, the Supreme Court overturned the Court of Appeal decision and agreed with four grounds of Heathrow Airport Limited's appeal. First, the Supreme Court found that the Paris Agreement itself did not constitute government policy under the Planning Act, and that in June 2018, the date of the ANPS, the domestic implementation of the Paris Agreement was still in development, and therefore also not government policy under the Planning Act. Second, the Secretary of State did not fail to act with the objective of sustainable development by failing to consider the Paris Agreement, because the Secretary gave weight to the Paris Agreement's obligations with regard to the Climate Change Act of 2008's emission reduction measures. Third, the Secretary did not treat the Paris Agreement as legally irrelevant to his Strategic Environmental Assessment because, again, he took into account domestic obligations under the Climate Change Act of 2008. Fourth, the Secretary did not act irrationally in excluding post-2050 and non-CO2 emissions, because the Department of Transport modeled emissions to 2085/2086, and the Secretary's decision reflected the lack of governmentally policy certainty about non-CO2 emissions.

As a result of the ruling, the government can now seek a development consent order, which is required for nationally significant infrastructure projects. According to news reports, this will require consideration of more stringent climate change pledges made by the UK government since 2018.

At Issue: Whether an approval to expand Heathrow International Airport is illegal due to inadequate consideration of climate change commitments under the Paris Agreement and advice to change national climate targets