The High Court of Justice in England and Wales has once again struck down the UK government's plan to achieve the carbon budgets for the periods from 2023 to 2037 as unlawful. This marks the second time in less than 2 years that the High Court has determined the plans for achieving legally binding emissions reduction targets to be critically flawed and not in accordance with the 2008 Climate Change Act (CCA).
Following a successful challenge to a previous plan, campaign groups challenged a revised “Carbon Budget Delivery Plan” (CBDP), arguing it still failed to properly account for and analyse the risks that key emissions-cutting policies may fall short or underperform.
The High Court broadly agreed. It concluded that the CBDP, formulated by the government in 2023, was established without proof of the attainability of the policies relied on by the CBDP for the required level of emissions reductions and on the basis of insufficient information surrounding the risks around underperformance, and required the UK government to revise the plan again.
As the UK Parliament is now dissolved pending the general election, the task of ensuring a robust decision-making process to safeguard the legally required level of net emissions reductions will need to be high on any incoming government’s agenda.
The CCA and carbon budgets
In 2008 the CCA established (with cross party support) (i) an independent expert advisor to government, the Climate Change Committee, (ii) a 2050 reduction target (the net UK carbon account) and (iii) a framework for 5-yearly carbon budgets to 2050. Carbon budgets require to be set by Parliament, for successive five year periods, each setting the level of reduction in emissions required during the relevant five year period to ensure that the UK continues “on track” to achieve “net zero” in terms of reducing net UK emissions of carbon dioxide and certain other greenhouse gas emissions. The intention of setting these future looking budgets was that they would be based on the best available scientific evidence, be politically agnostic given the ramifications of climate change and facilitate holistic strategies to achieve the 2050 target. In 2019 the 2050 target was changed from a requirement to achieve an 80 per cent reduction on 1990 levels by 2050 to at least 100 per cent by 2050 on 1990 levels (net zero). The carbon budgets having been set, the Secretary of State is obliged under the CCA to prepare such proposals and policies as they consider will enable these carbon budgets to be met with a view to meeting the 2050 target.
The First Case
Friends of the Earth, ClientEarth and the Good Law Project, the campaigning groups which brought the recent action, had previously brought a challenge against the government in 2022 following the unveiling of the government’s Net Zero Strategy (NZS).
The High Court ruled that the government had failed to comply with its duties under sections 13 and 14 of the CCA when it implemented the NZS, in particular as regards the identified potential shortfall in meeting the sixth carbon budget, as the NZS was based on a lack of sufficient information as to its achievability, which meant the public and Parliament were uninformed and unable to scrutinise its contents.
As a result, the NZS was quashed and the government was ordered to publish a revised, lawful climate strategy. After considerable analysis and information gathering, the revised plan was published in the form of the CBDP.
The Second (Recent) Case
When the CBDP was published in March 2023, covering plans to achieve carbon budgets 4, 5 and 6 (i.e. the period out to 2037) campaigners quickly raised new legal challenges arguing that the CBDP still failed to meet the necessary requirements. Various challenges were raised and the cases were heard together in the High Court in February 2024.
The campaigners claimed the CBDP remained unrealistic, and downplayed the significant risks that many of the emissions-cutting policies it contained could underperform and miss their projected reductions. Without properly analysing and quantifying these delivery risks, the campaigners argued the government had again failed to comply with its legal duties as set out in the CCA.
In considering the challenges brought, Mr Justice Sheldon considered carefully and in detail the process that had been followed by the relevant officials in the Department for Energy, Security and Net Zero (DESNZ) in gathering the information and evidence and then preparing and advising the Secretary of State on the proposed CBDP. In that process, the court recognised DESNZ had sought to take into account the criticisms that had led to the quashing of the NZS. There was no suggestion that the information presented to the Secretary of State was inaccurate, but rather the focus was on the question of whether a sufficient level of detail was provided to the Secretary of State to enable him to make the proper and appropriate evaluation as to whether the proposed CBDP met the CCA requirements.
Failure to consider sufficient (or sufficiently detailed) information
After hearing the case, the High Court ruled in the claimants’ favour on four of the five grounds of challenge. The Court concluded that the Secretary of State had acted irrationally and unlawfully, because he had proceeded on the mistaken understanding that every single policy proposal in the CBDP would be delivered in full so as to meet the sixth carbon budget. However, that was contradictory to the evidence that there were risks of under-delivery, which the Court considered were not sufficiently brought to the Secretary of State’s attention at the point he made his decision. The Court also rejected the suggestion that the Secretary of State would have been highly likely to have made the same decision even if not proceeding on that mistaken assumption – the Court could not see how that threshold could be met on the evidence before it.
The Court considered even if that were not the case, the information provided to the Secretary of State was also incomplete so that the Secretary of State could not properly evaluate which specific proposals were at risk of not being fully delivered and to what extent. Without this information, the Secretary of State could not assess whether under-delivery on some policies would be offset by over-delivery on others. While not necessarily requiring a specific illustrative rating system, the Secretary of State needed to have more granular information about the delivery risks for individual policies than was before him when he made his decision, rather than just the more general narrative about risks and mitigations that was presented to him when he was asked to consider and approve the CBDP.
Requirement to consider contribution to sustainable development
Mr Justice Sheldon also considered arguments on the requirement under section 13(3) of the CCA which states: "The proposals and policies, taken as a whole, must be such as to contribute to sustainable development." In particular, the Court considered whether, in light of the precise terms of this part of the CCA, the contribution to sustainable development should form any part of the Secretary of State’s assessment, or whether the Court was required to consider, as a matter of fact, whether the CBDP met this requirement, The Court concluded that this assessment does form part of the Secretary of State’s evaluation process , requiring the Secretary of State to assess with a sufficient degree of certainty that the proposals and policies being considered (i.e. the CBDP) would contribute towards meeting the carbon budgets. While the threshold for that assessment may be different (i.e. to “contribute” to achieving the carbon budget, rather than to “achieve” the carbon budget, as is required by other parts of the CCA), the use of the term “must” in section 13(3) meant that the Secretary of State had to consider there to be much more than a “better than evens chance” of the contribution being met. The Secretary of State had however only indicated that this outcome was “likely” - that was insufficient and so the Secretary of State had failed to comply with the necessary requirements in this regard also.
Ultimately, the Court determined the Secretary of State did not have adequate risk information to credibly evaluate if the CBDP could achieve 97% of the stated emissions savings goal for the sixth carbon budget period.
Based on these failings, the CBDP was struck down as unlawful.
Comment
The next government must now develop a third plan that addresses the issues identified by the Court, ensuring that sufficient and detailed information is provided to the Secretary of State including importantly identifying any risks to or potential shortfalls in policy delivery, so as to enable the Secretary of State to take an informed evaluation of whether the proposals meets the requirements of the CCA by setting out the emissions savings up to the sixth carbon budget period that are necessary to meet the 2050 net zero target.
The judgement indicates the assumptions underlying the previous plans were overly optimistic about full policy implementation. This decision challenges policy makers to ensure robust and realistic analysis is embedded in their emissions reduction planning and implementation. Their efforts to do so as a third attempt at compliance with the CCA will undoubtedly face the same intense scrutiny from campaigners as has met the first two attempts.
Friends of the Earth & Ors v Secretary of State for Energy Security and Net Zero [2024] EWHC 995 (Admin) (03 May 2024) (bailii.org)
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