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

Summary:

On October 19, 2021, the Secretary of State for Business Energy and Industrial Strategy (Kwasi Kwarteng; the “SoS”) adopted the Net Zero Strategy ("NZS") and the Heat and Buildings Strategy ("HBS"). The NZS is the Government’s economy-wide decarbonization strategy, and the HBS is the specific strategy for decarbonizing heating and homes. On January 12, 2022, Friends of the Earth England Wales and Northern Ireland (“FoE”) filed a claim for judicial review against the SoS, in relation to the NZS and the HBS, arguing that both strategies were unlawfully adopted.

In relation to the NZS, FoE argues that the SoS breached sections 13 and 14 of the Climate Change Act 2008 (“CCA”). 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, and to report on those policies to parliament. FoE submits that the SoS has not complied with these duties, because whilst the NZS contains targets for carbon emissions reduction, it does not quantify what impact its policies will have in reducing emissions, or the timescales for these to happen. FoE also argued that the SoS breached section 149 of the Equality Act 2010 through failing to consider the impact of the Heat and Buildings strategy on people with protected characteristics. The strategy sets out policies for homes and buildings to reduce their emissions, in order to achieve the UK’s net zero goal by 2050. Yet research shows that people with certain protected characteristics under the Equality Act 2010, such as people of color, people with disabilities and older people, are disproportionately impacted by issues such as energy poverty area. On April 7, 2022 the SoS conceded on this 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 environmental legal charity ClientEarth, and the NGO Good Law Project, filed separate judicial review challenges to the NZS in the week commencing January 17, 2022, also in relation to the CCA. FoE, along with ClientEarth and Good Law Project, 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. The grounds from all organisations will be heard together. A hearing is taking place in June 2022.
A separate claim, unrelated to the cases issued by FoE, ClientEarth and Good Law Project, was brought by claimants, Aghaji and 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 are currently awaiting a decision on whether they have permission to proceed to a full hearing.

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).