Friends of the Earth and Others v. Secretary of State for Transport

Summary:

The case concerned the legality of the government’s Airport National Policy Statement (“ANPS”), the policy framework adopted under the Planning Act 2008 (“the Planning Act”), which provides in-principle support for Heathrow airport expansion.

In February 2020, the Court of Appealed ruled that the ANPS had not been lawfully adopted, as the Government had not considered the Paris Agreement. However, in December 2020 the UK Supreme Court overturned the Court of Appeal’s decision, ruling that the Government’s ANPS was produced lawfully. Due to this, developers are now able to apply for development consent (planning permission) to expand Heathrow Airport. The judgment makes clear, however, that full climate considerations must be taken into account at the planning permission stage meaning that there are still phases left to satisfy before the runway can actually be built. To date, no application for planning permission has been made.

In August 2018, Friends of the Earth England, Wales and Northern Ireland (FoE EWNI) and Plan B Earth (Plan B; a British non-profit with the mission to realize the goals of the Paris Agreement on climate change), filed separate legal claims against the Secretary of State for Transport, Chris Grayling, (“the Secretary of State”) alleging inadequate consideration of climate change impacts in regards to the ANPS. Additional claimants also brought legal challenges, including some local authorities and the NGO Greenpeace, but it was Plan B and FoE EWNI who took the lead on the climate-related claims. Additionally, Heathrow Airport Limited (HAL) and Arora Holdings Limited (Arora) defended the decision to adopt the ANPS as interested parties.

FoE ENWI relied on section 10 of the Planning Act in their arguments against the Government. Section 10 requires that the adoption or review of a national policy statement must be a done in a way that contributes to sustainable development, and that particular regard is had to the desirability of mitigating the effects of climate change. FoE EWNI’s four grounds were that the Secretary of State had:
• failed to consider the UK’s commitments to the Paris Agreement;
• failed to consider the non-CO2 warming impacts of aviation;
• Failed to consider the climate impacts of the expansion beyond the current 2050 reduction UK target as set by the Climate Change Act 2008; and
• Not complied with the EC Council Directive 2001/42/EC (“the Strategic Environmental Assessment Directive; as implemented through the SEA Regulations”).

Plan B argued that the Government’s commitment to the Paris Agreement was already part of government policy, and therefore that the Government had breached section 5(8) of the Planning Act. Under section 5(8), the Secretary of State must include an explanation of how the ANPS considers Government policy to mitigate and adapt to the effects of climate change.

In May 2019, the case went before the Divisional Court (with two judges; a High Court Judge and a senior judge). The court dismissed all the claims, including those filed by FoE EWNI and Plan B.

The claimants appealed, and the case was heard by the Court of Appeal in October 2019. In February 2020, the Court of Appeal reversed the decision of the Divisional Court, unanimously agreeing with both FoE EWNI and Plan B on all their grounds. The appeals brought by the other parties, such as the local authorities, were dismissed.

In their judgement the Court recognised that, “the legal issues are of the highest importance … Both the development itself and its effects will last well into the second half of the century,” (Court of Appeal judgment, para. 277).
The court concluded that the Government commitment’s to the Paris Agreement formed a part of “Government policy” by the time the ANPS was prepared. The Secretary of State, as a result, needed to expressly consider and address the Paris Agreement when adopting the ANPS.

The court held that by failing to consider the Paris Agreement, the Secretary of State breached the Planning Act on the basis of s.5(8) (Plan B’s ground) and s.10 (FoE EWNI’s ground). The failure to consider the non-CO2 warming impacts, or to consider the climate impacts beyond 2050 were further breaches of s.10 (FoE EWNI’s grounds). Furthermore, its failure to consider the Paris Agreement in the strategic environmental assessment meant that it had also breached the SEA Directive (FoE EWNI’s ground).

The Court therefore concluded that the ANPS was of no legal effect and must be reviewed so that the legal errors could be corrected. In response, the Government stated that it would not challenge this decision.

In February 2020, HAL and Arora–(the two commercial entities, which were interested parties in the case) applied for permission to appeal to the Supreme Court. In May 2020, the Supreme Court agreed to hear the appeal. Arora subsequently withdrew, so when the case went before the Supreme Court for the substantive hearing in October 2020, the sole appellant was HAL. The Government did not participate in the appeal. FoE EWNI and Plan B were the respondents to the appeal and defended the decision by the Court of Appeal. HAL’s appeal challenged the Court of Appeal’s ruling in relation to all four grounds argued by FoE EWNI, and Plan B’s s.5(8) ground. In December 2020, the Supreme Court overturned the Court of Appeal’s decision in full. The judgments conclusions in relation to FoE EWNI’s grounds were as follows:

Firstly, the Secretary of State had a broad discretion on what to consider in terms of mitigating the effects of climate change through sustainable development under section 10 of the Planning Act. The Supreme Court held that the Secretary of State had acted lawfully, and to the extent that he needed to consider the Paris Agreement, had done so through consideration of the emission reduction commitments in the Climate Change Act 2008.

Secondly, the SEA conducted was lawful, and did not need to expressly refer to the Paris Agreement. Full consideration to climate matters would take place at the stage of applying for planning permission.

Thirdly and fourthly, the Secretary did not act irrationally in excluding post-2050 and non-CO2 emissions. There was uncertainty over the quantification of non-CO2 impacts, and both these and post 2050 emissions could be considered at the planning stage.

In relation to Plan B’s ground, the Supreme Court found that the Paris Agreement itself did not constitute government policy under section 5(8) of the Planning Act, giving the term in the legislation a “relatively narrow meaning,” (UK Supreme Court judgment at para.10).

As there is no onward appeal from the UK Supreme Court, this case cannot be taken further. The ANPS has therefore been reinstated with full legal effect, so that a developer can now apply for planning permission for the expansion of Heathrow airport. Details of the implications of the judgement are included in the Friends of the Earth briefing.

At Issue: Whether the ANPS, the Government’s policy providing in-principle support for expansion at Heathrow airport, adopted under the Planning Act 2008 gave adequate consideration to the UK’s climate change commitments under the Paris Agreement.