UK’s climate action plan ruled unlawful by High Court (again)

The UK’s current plan for meeting its climate goals – which itself is a response to a previous legal challenge issued by the same claimants – was ruled unlawful by Sheldon J in the High Court on Friday (03 May 2024).

A Little Context:

As part of the UK Government’s commitment to achieving net zero greenhouse gas (‘GHG’) emissions by 2050, s4 Climate Change Act 2008 (‘CCA 08’) requires the Secretary of State (‘SoS’) – formerly for Business, Energy and Industrial Strategy, but now for Energy Security and Net Zero – to set Carbon Budgets for the UK in successive five-year periods. Each Carbon Budget (‘CB’) must be set with a view to meeting the 2050 target found in s1. The SoS has already set the first six. The first three CBs were either met or overachieved and we are potentially on track (though more likely to be off-track) to meet CB4.

As for CB6 (representing the period 2033 – 2037) it is worth noting that it is the first to be set in line with the amended net zero targets of s1 CCA 08 (the net UK carbon account for 2050 has been increased from at least 80% to at least 100% lower than the 1990 baseline), as well as being the first Carbon Budget to include aviation and shipping emissions attributable to the UK, making it a much more difficult target to meet than previous CBs.

The Previous Case:

Two years ago, Friends of the Earth, ClientEarth and the Good Law Project brought separate (later joined) proceedings for a judicial review, challenging the net zero strategy and more specifically, the decision to approve proposals and policies. In the case – FoE (No.1) – Holgate J decided the SoS had failed in his s13(1) CCA 08¹ duty to prepare the proposals and policies necessary to enable the achievement of CBs 4, 5 and 6 by not taking relevant considerations into account which were obviously material to his decision (specifically, the quantitative contributions that individual proposals and policies were expected to make to meeting those carbon budgets; how an identified 5% shortfall for meeting CB6 would be made up; and, the implications on these matters for risk of delivery of net zero and CB6 policies). Holgate J also found that the SoS failed to fulfil his obligation under s14(1)² to set out proposals and policies for Parliament to meet said carbon budgets: it was not sufficient for him to merely tell Parliament what the proposals and policies were, the SoS was required to explain the thinking behind the proposals and how they would enable the carbon budgets to be met, including a quantitative explanation but excluding the department’s detailed workings and modelling.

Per Holgate J: “A report under section 14 is important not only to enable parliament to scrutinise the secretary of state’s policies and to hold him to account, but also to provide transparency so that the public can properly understand how the government intends to meet the statutory targets.”

As a result, the UK Government was required by court order to issue an updated strategy by 31 March 2023. A Carbon Budget Delivery Plan (‘CBDP’) was then laid before Parliament on 30 March 2023.

The Current Case:

The CBDP was challenged by the same climate campaigners as the previous case (Friends of the Earth, ClientEarth and the Good Law Project), on five grounds:

1. The SoS failed to take into account mandatory material considerations when purporting to comply with s13 CCA 2008;
2. The SoS 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 SoS was provided;
3. The SoS’s conclusion that the proposals and policies would enable the carbon budgets to be met was irrational;
4. The SoS applied the wrong legal test to s13(3) CCA 2008 (“sustainable development”);
5. The SoS failed to include in the CBDP information that he was required to include.

Grounds 1, 2 and 3:

These were addressed together as there was significant overlap between them.

Both claimant and defendant arguments revolved around the way in which risk material was presented to the SoS and the extent to which it was sufficient for him to take a lawful decision under s13. Sheldon J decided that reasonable interpretation of CBDP’s submissions indicated that the SoS was being told by his officials that each of the individual proposals and policies that formed the packet of measures would be delivered in full, and that none of the commentary or narrative risks provided to him could have led him to any other conclusion. Having expressly approved the CBDP on this basis, the SoS’s decision was irrational as it was made on a mistaken understanding of the true position.

Ground 4:

According to s13(3) CCA 08, “The proposals and policies, taken as a whole, must be such as to contribute to sustainable development.” It was argued by the claimants that the SoS failed to meet this requirement since the CBDP stated that “…the overall contribution to sustainable development is likely to be positive.”

Several questions arose: did s13(3) require the SoS to make an assessment/evaluation, if so, did it impose a threshold of certainty on that assessment/evaluation, and if so, was that threshold met? Based on the use of the word “must” in s13(3), Sheldon J concluded that certainty of a particular outcome would be expected: the word is also used in other subsections of s13 and in all cases it is clear that the SoS is obliged to carry out a particular exercise, so it would stand to reason that “must” would have the same connotations in subsection 3. Therefore, the SoS was obliged to make an assessment which did impose a threshold of certainty, however, this was not met as the CBDP’s proposals and policies being “likely” to make a contribution to sustainable development was not sufficient to meet the higher requirements of “must”.

Ground 5:

This ground was dismissed as Sheldon J felt the material contained in the CBDP complied with s14 CCA 08’s duty of the SoS.

Quick Conclusion:

While the judgment highlights clear flaws in the advice political officials offer their seniors in regard to climate change targets, providing them with optimism so heavily spun it’s legally irrational, it does does also leave businesses subject to/reliant upon climate change policy in worrying limbo as they need to wait even longer for political direction in this area. One can only hope the old adage of ‘third time’s a charm’ won’t apply and we get a credible plan soon.

1. Section 13(1) Climate Change Act 2008: “The Secretary of State must prepare such proposals and policies as the Secretary of State considers will enable the carbon budgets that have been set under this Act to be met.” ↩︎
2. Section 14(1) Climate Change Act 2008: “As soon as is reasonably practicable after making an order setting the carbon budget for a budgetary period, the Secretary of State must lay before Parliament a report setting out proposals and policies for meeting the carbon budgets for the current and future budgetary periods up to and including that period.” ↩︎