A tale of two targets. UK government sees off judicial review challenge to its climate change targets.

 

A recent little reported decision on the most important issue of our times (no, not ‘Brexit’). In Plan B Earth v Secretary of State for Business, Energy and Industrial Strategy and the Committee on Climate Change [2018] EWHC 1892 (Admin) an application was made by the claimants to apply for judicial review, brought by Plan B Earth and eleven other claimants, of the refusal by the Defendant (“the Secretary of State”) to revise the 2050 carbon target under the Climate Change Act 2008 (“the 2008 Act”) at the present time.

Under article 2(1) (a) the 2015 Paris Agreement on Climate Change which the UK has ratified the parties commit to: “Holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial limits, recognising that this would significantly reduce the risks and impacts of climate change.” The Paris Agreement also aims for net zero emissions in CO2 by the second half of the century.

Under the 2008 Climate Change Act a duty is imposed on the  Secretary of State to ensure that the net UK carbon account for the year 2050 (“the 2050 target”) is at least 80% lower than the 1990 baseline.  Section 2(1)(a) confers a power on the Secretary of State by order to amend the 2050 target by amending the 80% figure.  The power may be exercised if it appears to the Secretary of State that there have been significant developments in— (i) scientific knowledge about climate change, or (ii) European or international law or policy, that make it appropriate to do so.” Before exercising the power the Secretary of State is required by s.3(1)(a) to obtain, and take into account, the advice of the Committee on Climate Change (“the Committee”), an independent body composed of experts, established by s.32 of the Act.

In response to the Paris Agreement, the Committee advised in October 2016 that no change should be made to the 2050 target at this time.  As regards the Paris Agreement the Committee stated

“In line with the Paris Agreement, the Government has indicated it intends at some point to set a UK target for reducing domestic net emissions to net zero.  We have concluded it is too early to do so now, but setting such a target should be kept under review. .. Emissions pathways indicate that CO2 emissions will need to reach net zero by the 2050s-70s, along with deep reductions of all other greenhouse gases, in order to stay below 2°C.  To stay close to 1.5°C CO2 emissions would need to reach net zero by the 2040s. … We currently have no scenarios for how the UK can achieve net zero domestic emissions. …”  The UK’s 2050 target under the 2008 Act was challenging but could be met in various ways using currently known technologies. Current policy in the UK was not enough to deliver the existing carbon budgets that Parliament has set.  The Committee’s assessment was that current policies “would at best deliver around half of the emissions reductions required to 2030, with no current policies to address the other half.  This carbon policy gap must be closed to meet the existing carbon budgets, and to prepare for the 2050 target and net zero emissions in the longer term.”

Supperstone J held that the claim was not arguable and refused the application. The Secretary of State had not misunderstood the Committee’s advice and the Committee’s advice did not misunderstand the Paris Agreement. It was not arguable that the Secretary of State’s refusal to amend the 2050 target was an unlawful exercise of his discretion. The Secretary of State was correct in understanding that the Paris Agreement does not impose a binding legal target on each specific contracting party to achieve any specified temperature level by 2050.

The applicants plan to appeal. Later this year the IPCC will issue its special report on global warming of 1.5C to the UK government for comment. The Secretary of State will seek the Committee’s advice “as soon as is reasonably practicable following publication of the final IPCC report”.

Elsewhere, on May 23, 2018 a similar challenge was made against the European Parliament and the Council before the EU General Court (“EGC”) to urge EU institutions to adopt more stringent greenhouse gas reduction targets than those set out in its 2030 climate and energy framework which commits the EU to a reduction of overall greenhouse gas emissions by 2030 by at least 40% compared to 1990 levels.

A point of interest. In 2017 the year following the ratification of the Paris Agreement the International Energy Agency reported that energy related emissions had climbed 1.4 percent to 32.5 gigatons.

A case of “Lord make us carbon neutral, but not yet” (pace St Augustine)?

 

 

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