“An embarrassing day for the government” – the UK’s Climate Plan a Failure, says the High Court

by Freya Doughty-Wagner

Image source: Chris LeBoutillier

On May 3, 2024, the High Court held the UK government’s climate action plan unlawful—“there is not enough evidence that there are sufficient policies in place to reduce greenhouse gas emissions.” Claimants Friends of the EarthClientEarth, and the Good Law Project successfully demonstrated the gaps in the government’s lackluster climate plans, contrary to its prescribed obligations under the Paris Agreement, the Climate Change Act 2008 (‘CCA’), and the judgment handed down on July 18, 2022, which found the Secretary of State’s carbon budget proposals a failure pursuant to the CCA.

The Climate Change Act 2008, Section 1(1) states: “It is the duty of the Secretary of State to ensure that the net UK carbon account for the year 2050 is at least 100% lower than the 1990 baseline.” The Secretary of State must also prepare carbon proposals and policies that will “enable the carbon budgets that have been set under this Act to be met,” (Section 13(1)) and “as soon as is reasonably practicable after making an order setting the carbon budget for a budgetary period, […] must lay before Parliament a report setting out proposals and policies for meeting the carbon budgets for the current and future budgetary periods” (Section 14(1)). The Secretary of State has set the first six carbon budgets in relation to the 1990 baseline, concluding with 2033-2037.

Source: R v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841 (Admin), 3.

Friends of the Earth, ClientEarth, and the Good Law Project first challenged the sixth budget plan (‘CB6’) in 2022. The High Court found that the Secretary of State for Business, Energy and Industrial Strategy (‘BEIS’) had breached s.13 and s.14 of the CCA because he had not provided sufficient information to achieve CB6. For example, in the government’s Net Zero Strategy publication – which expands upon the above carbon budgets – only 95% of emissions reductions required to meet CB6 had been calculated, and it “had not been explained to him how the 5% shortfall would be made up.” Further, the Net Zero Strategy plan itself “lacked vital information which meant that Parliament and the public were unable to properly scrutinize it,” including quantifiable measures and data, contrary to s.14 of the CCA. Consequently, Judge Holgate declared that the Net Zero Strategy had been unlawfully adopted. Following this decision, the Secretary of State had to reexamine the government’s carbon budget policies and proposals.

Judge Holgate remarked:

“The Secretary of State cannot properly and rationally be satisfied that his proposals and policies will enable the carbon budgets to be met without quantitative analysis to predict the effects of those proposals and policies in reducing GHG emissions;” and […]

“Although a quantitative assessment does not have to show that quantifiable policies can deliver the whole of the emissions reductions required by the targets, any qualitative judgment or assessment to address that shortfall will have to demonstrate to the Secretary of State how the quantitative targets can be met.”

Judge Holgate ordered the Secretary of State for BEIS to present to Parliament a report that was compliant with the CCA by March 31, 2023. On March 31, 2023, the new Carbon Budget Delivery Plan was laid before Parliament. The Claimants, Friends of the Earth, ClientEarth, and the Good Law Project, contended this plan once again failed to comply with s.13 and s.14 of the CCA on five grounds.

  1. The Secretary of State failed to take into account mandatory material considerations when purporting to comply with section 13 of the CCA 2008;
  2. The Secretary of State proceeded on the basis of an assumption that all of the quantified proposals and policies would be delivered in full, and this assumption was not supported by the information as to risk to delivery with which the Secretary of State was provided;
  3. The Secretary of State’s conclusion that the proposals and policies will enable the carbon budgets to be met was irrational;
  4. The Secretary of State applied the wrong legal test to section 13(3) of the CCA 2008 (“sustainable development”);
  5. The Secretary of State failed to include in the Carbon Budget Delivery Plan (‘CBDP’) information that he was required to include.

Grounds 1-3:

Ground 1: The claimants contended the Secretary of State “was not provided with, and so failed to take into account, key materials on the risk to the delivery of individual policies and proposals set out in the CBDP.” They also argued that “the officials within the Department for Energy, Security and Net Zero mispresented the extent of these risks in the briefing materials they provided to the Secretary of State.” The emissions forecast in CB6 involved policies that were unlikely to be delivered or achieved in full – the Secretary of State should have been alerted to these uncertainties. The claimants also discovered quantification errors in modeling the projected emission reduction proposals, and some policies and proposals were deemed to be achieved with ‘high confidence’ but, upon inspection, should have been identified as having ‘low delivery confidence.’

Grounds 2-3: The claimants argued the Secretary of State “expressly approved the CBDP on the assumption that all of the quantified policies and proposals relating to emissions savings would be delivered in full.” Friends of the Earth and ClientEarth said the Secretary “was not open […] to make this assumption when approving the CBDP, based on the information available to [him] […] about the delivery risk.” Ninety percent of the emissions savings attributable to quantified policies were deemed ‘uncertain’ or ‘high’ delivery risk. It was, therefore, ‘irrational’ for the Secretary to approve such an uncertain plan.

Further, Ms Simor KC demonstrated the Secretary knew that “he could be confident that at best only 10% of the emissions reductions […] would be delivered.” The Secretary knew there was a real risk of under-delivering in terms of emission reduction requirements; there was “no rational basis” for the Secretary to conclude the CBDP’s package of proposals and policies would be “delivered in full.”

As part of the CBDP March 2023 submissions, information about risk was presented to the Secretary. He was told: “Based on current projections, our view is that the package of proposals and policies that we can quantify will deliver sufficient quantified savings to meet […] 97% of CB6. […] You should note that this quantification relies on the package of proposals and policies being delivered in full. Our advice is that it is reasonable to expect this level of ambition – having regard to delivery risk […] and the wider context.” (emphasis in the original)

With respect to this text, Judge Sheldon concluded:

“…the Claimants contend that this construction does not reflect the wording used in the submissions and the reasonable understanding that the Secretary of State would have had. I agree with the Claimants.”

Ground 4:

Section 13(3) of the CCA states: “The proposals and policies, taken as a whole, must be such as to contribute to sustainable development.” Conversely, in the CBDP, the Secretary of State says that in relation to sustainable development, “There are both positive and negative natural capital impacts associated with these proposals and policies, but the overall contribution to sustainable development is likely to be positive.” (emphasis added)

Clearly, a finding that the impact of the proposals is ‘likely to be positive’ is not the same as a finding that ‘will be positive. The defendants contended section 13(3) does not impose a test of certainty, but the Judge concluded the term ‘must’ “connotes a degree of certainty that a particular outcome will eventuate. The term ‘must’ is used elsewhere in section 13 (subsections (1) and (2)), and in both of these instances it is understood to mean that the Secretary of State has to carry out a particular exercise. He is obliged to do so. There is no obvious reason why the draftsman would have used the same term at subsection (3) if it was to bear a very different meaning.” Therefore, the Secretary of State erred in making his decision under s13(3).

Ground 5:

Judge Sheldon found in favor of the defendants. He deemed the material in the CBDP compliant with the Secretary of State’s duty under s14 of the CCA. “I do not consider that section 14 required the Secretary of State to provide further risk information as to the specific policies […] [r]equiring the Secretary of State to provide information about risk would unduly strain the statutory language of section 14.”

Lawyer for Friends of the Earth, Katie de Kauwesaid “This is another embarrassing defeat for the government and its reckless and inadequate climate plans. We’ve all been badly let down by a government that’s failed, not once but twice, to deliver a climate plan that ensures both our legally binding national targets and our international commitment to cut emissions by more than two-thirds by 2030 are met. We urgently need a credible and lawful new action plan that puts our climate goals back on track and ensures we all benefit from a fair transition to a sustainable future. Meeting our domestic and international carbon reduction targets must be a top priority for whichever party wins the next general election.”

The Judge will provide a new deadline for an updated review of the CBDP soon. The UK has a target to reduce GHG emissions by 78% by 2035, when compared to 1990 levels. The UK Climate Change Committee’s most recent emissions report shows UK GHG emissions have only fallen 46% from 1990 levels; “the scale up of action overall is worryingly slow.” Hopefully, Friends of the Earth, ClientEarth, and the Good Law Project’s recent success will finally expedite actionable and measurable change for the UK’s carbon budget reduction plans.


Posted

in

by