R (oao Friends of the Earth) v. Secretary of State for Business Energy and Industrial Strategy

Summary:

On January 12, 2022, Friends of the Earth (FoE) filed a claim for judicial review against the SoS, in relation to the Net Zero Strategy (“NZS”) and the Heat and Buildings Strategy (HBS; the Government’s strategy to decarbonize homes and buildings) arguing that both strategies were unlawfully adopted. The NZS is the Government’s economy-wide decarbonization strategy. The CCA was the first piece of legislation anywhere in the world to set domestically enforceable carbon reduction targets. Sections 13 and 14 of the CCA require the SoS to produce policies which will enable upcoming carbon budgets set under the CCA to be met (s.13), and to report on those policies to parliament (s.14).

The environmental legal charity, ClientEarth, and the NGO, Good Law Project (“GLP”), filed separate judicial review challenges to the NZS in the week commencing 17 January 2022, also in relation to the CCA. In relation to the NZS, all three claimants argued that the SoS breached sections 13 and 14 of the CCA. FoE also argued that the SoS breached section 149 of the Equality Act 2010 through failing to consider the impact of the HBS on people with protected characteristics. Research shows that people with certain protected characteristics under the Equality Act 2010, such as people of colour, people with disabilities and older people, are disproportionately impacted by issues such as energy poverty. GLP also brought a separate ground in relation to human rights, under s.3 of the Human Rights Act 1998 (HRA). They argued that s.13 and s.14 of the CCA had not been interpreted in way that is compatible with the Government’s human rights obligations, including Article 8 (right to private and family life).

The three claimants all received permission to proceed on all grounds on March 1, 2022. The court found that the cases all had realistic prospects of success, and merited a full substantive hearing. On April 7, 2022 the SoS conceded on FoE’s HBS ground, confirming that he had breached his public sector equality duty and was undertaking an equality impact assessment of the HBS (FoE had identified through an Environmental Information Request, that he had not done one previously). The substantive hearing for the three cases took place on 8 and 9 June 2022 before Mr Justice Holgate at the High Court. Following this, a separate hearing was listed on July 15, 2022 in relation to the evidence on the distinction between the quantified impacts of the policies in the NZS, and the emissions reduction delivery pathway. The latter, which was based on modelling for the potential for each sector across the economy to decarbonise, was included in the NZS but the former was not.

Following legal challenges brought by (1) Friends of the Earth, (2) ClientEarth and (3) Good Law Project and Joanna Wheatley, the High Court ruled on 18 July 18, 2022 that the Secretary of State for Business, Energy and Industrial Strategy (Kwasi Kwarteng; the “SoS”) breached s.13 and s.14 of the Climate Change Act 2008 (“CCA”) when he adopted the NZS on 19 October 2021. Holgate J found that the NZS had been unlawfully adopted as:
1. The Minister had legally insufficient information before him to adopt the NZS (breach of s.13 of the CCA). For example, whilst he had been informed that the quantified policies in the NZS added up to c.95% of the emissions reductions needed to meet the sixth carbon budget (CB6; set under the CCA, and covering the period 2033-2037), he had not been provided with the breakdown of the contributions of the individual policies, and it had not been explained to him how the 5% shortfall would be made up. This mean that he was not able to properly understand the risk to the delivery of the policies in the NZS. Risk to delivery was an obviously material consideration.
2. The NZS itself lacked vital information which meant that Parliament and the public were unable to properly scrutinize it (breach of s.14 of the CCA). For example, Parliament was not aware of the 5% shortfall for meeting CB6. The NZS should have included quantified policies (i.e. setting out what their individual emissions reductions were estimated to be), in order for Parliament to be able to scrutinize risk to delivery. The judgment placed “considerable weight” on the views of the Committee on Climate Change, the independent expert body under the CCA, which had advised the Government that the NZS should include quantified policies.
GLP’s separate ground relating to the HRA was not successful; Holgate J concluded that it was too ambitious and did not accord with established principles.

The Government is not pursuing an appeal and so must comply with the High Court’s order, under which it must produce a report which is compliant with s.14 of the CCA by no later than March 31, 2023.

A separate claim, unrelated to the cases issued by FoE, ClientEarth and GLP’s claims was brought by two claimants, Adaeze Aghaji and Peter Garforth, against the Government’s NZS alleging that the proposals and policies set out are insufficient to meet the UK’s sixth carbon budget. The claimants filed for judicial review in late March 2022 and were granted permission to proceed on the 25 May 2022. However, the application was stayed pending the outcome of the claims brought by FoE, ClientEarth and GLP.

At Issue: Whether the SoS’s adoption of the Net Zero Strategy did not discharge his duties under the Climate Change Act 2008, and whether the adoption of the Heat and Buildings Strategy has meant that the SoS has breached the Equality Act 2010 (FoE’s Claim). Whether the SoS’s adoption of the Net Zero Strategy did not discharge his duties under the Climate Change Act 2008, and whether these duties had been interpreted compatibly with human rights obligations (ClientEarth’s and the Good Law Project’s claims).