The Government’s unlawful Net Zero Strategy

On 18 July 2022, the High Court ruled that the Government’s Net Zero Strategy (“NZS”) - the cornerstone of its strategy to transition to a green and sustainable future - was unlawful. It decided that the obligations set out in sections 13 and 14 of the Climate Change Act 2008 (“CCA”) had not been satisfied and ordered the Secretary of State for Business, Energy and Industrial Strategy to lay a new report before Parliament by the end of March 2023.

Background

The Government announced in October 2021 that it was adopting the NZS, the primary purposes of which are to outline how the UK will meet its obligation to reach net zero Greenhouse Gas (“GHG”) emissions by 2050, meet the targets laid out in the 5 year carbon budgets up to 2052 and meet the UK’s 2030 Nationally Determined Contribution.

Among other things, the NZS purports to explain how the UK will meet its commitments set out above and transition to a green and sustainable future.

Following a series of connected legal challenges brought by environmental and legal activist groups - ClientEarth, Friends of the Earth and the Good Law Project – alleging that the Secretary of State was in breach of its obligations under sections 13 and 14 of the CCA by virtue of the NZS’s insufficiency. In particular, they alleged that the Secretary of State had failed to prepare policies and proposals enabling the 5 year carbon budgets to be met and to lay an adequate report before Parliament setting out adequate proposals and policies for meeting those carbon budgets.

These applications for judicial review culminated in a two-day hearing at the High Court in June, at which Mr Justice Holgate considered whether the Secretary of State had satisfied its obligations. He concluded that the Secretary of State had failed to satisfy its duty on both counts.

The Arguments and the Ruling

The claimants argued that under section 13 of the CCA, the Secretary of State had to be satisfied that his estimate of GHG emissions reductions from policies with a quantifiable effect will enable 100% of the numerical target (i.e. a 78% reduction from 1990 level) in the 6th carbon budget (“CB6”) to be met. It followed, they argued, that his failure to identify how the final 5% of the target would be achieved amounted to a breach of his statutory duty. The Secretary of State submitted that he was not required to be satisfied that the emissions reductions solely attributable to quantifiable policies will enable the target to be fully met, and the High Court agreed with this submission.

However, the High Court concluded that section 13 had been breached in a different manner. The claimants had additionally argued that the Secretary of State was obliged to – and failed to – consider the contributions which each quantifiable policy would make to meeting the carbon budgets and which policies were proposed to make up the 5% shortfall and in what ways. The court agreed, noting that while his department had considered this information, it was not included or summarised in the Secretary of State’s briefings and therefore he was unable to take it into account. Consequently, he did not discharge his duty under s.13.

The claimants further submitted that the NZS (i.e. the report to be laid before Parliament under section 14) ought to have included a numeric explanation for the Secretary of State’s conclusion that his policies would enable the carbon budget to be met and of the extent to which those policies individually and in combination were expected to achieve that objection. The Secretary of State disputed this interpretation of section 14, arguing that it needed only to disclose what his policies are. The court sided with the claimants, concluding that the NZS’s was legally insufficient by virtue of its failure to:

• include any quantitative assessment of the contribution made by individual policies to GHG emission reductions;
• reveal that the quantitative analysis put before the Secretary of State left a shortfall against the reductions required by CB6; or
• reveal how that shortfall was expected to be met.

As such, the High Court declared that the NZS was incomplete and therefore unlawful, and ordered the Secretary of State to lay before Parliament a fresh report under section 14 before the end of March 2023. The Secretary of State’s application for permission to appeal was refused.

Comment

As a result of this ruling, we can expect the revised NZS to contain a more precise explanation as to how the GHG emissions reduction target contained in CB6 will be met. Two consequences follow from this: firstly, greater a likelihood that the targets will be met; and secondly, companies that would eventually be subject to further requirements and regulations needed to meet those targets will be made aware of those earlier and therefore given more time to adapt. We can also expect that future carbon budgets (i.e. those for 2038 -2052) will be equally as detailed.