Tag: Heathrow third runway. Climate change. Paris Agreement 2015.

Heathrow Third Runway. 2018 Airports National Policy Statement not unlawful

Heathrow Third Runway. 2018 Airports National Policy Statement not unlawful

In February the Court of Appeal held that the Secretary of State had acted unlawfully in failing to take the Paris Agreement into account when designating the Airports National Policy Statement (the “ANPS”) and its accompanying environmental report in relation to the proposed  third runway at Heathrow airport. Accordingly, the ANPS was of no legal effect. Last week the Supreme Court overruled that decision on an appeal by the company which owns Heathrow Airport, Heathrow Airport Ltd (“HAL”).

The Secretary of State designated the Secretary of State designated the ANPS as national policy on 26 June 2018 under section 5(1) of the Planning Act 2008 (the “PA 2008”). Section 5(8) states that these reasons must include an explanation of how that policy takes account of existing “Government policy” relating to the mitigation of and adaptation to climate change. The March 2016 statements of Andrea Leadsom MP and Amber Rudd MP and the formal ratification of the Paris Agreement did not mean that the Government’s commitment to the Paris Agreement constituted “Government policy” in the sense in which that term is used in the statute. At the point the ANPS was designated in June 2018, there was no established “Government policy” on climate change beyond that already reflected in the Climate Change Act 2008 which sets a national carbon target. International treaties are binding only as a matter of international law and do not have an effect in domestic and do not constitute a statement of “Government policy” for the purposes of domestic law

The evidence shows that the Secretary of State took the Paris Agreement into account and, to the extent that its obligations were already covered by the measures in the CCA 2008, ensured that these were incorporated into the ANPS framework Insofar as the Paris Agreement might in future require steps going beyond the current measures in the CCA 2008, the Secretary of State took it into account but decided that it was not necessary to give it further weight in the ANPS.

Further, the Secretary of State had not separately breached his section 10 duty by failing to have regard to, firstly, the effect of greenhouse gas emissions created by the NWR scheme after 2050 and, secondly, the effect of non-CO2 emissions. The UK’s policy in respect of the Paris Agreement’s global goals, including the post-2050 goal for greenhouse gas emissions to reach net zero, was in the course of development in June 2018. The Secretary of State did not act irrationally in deciding not to assess post-2050 emissions by reference to future policies which had yet to be formulated and The Secretary of State’s department was also still considering how to address the effect of non-CO2 emissions in June 2018.

Future applications for development consent for the third runway will be assessed against the emissions targets and environmental policies in force at that later date rather than those set out in the ANPS in June 2018.

In June 2018 the CCA target was for a reduction in carbon emissions by 80% by 2050 which was Parliament’s response to the international commitment to keep the global temperature rise to 2ºC above pre-industrial levels in 2050. The figure of 100% was substituted for 80% in section 1 of the CCA 2008 by the Climate Change Act 2008 (2050 Target Amendment) Order 2019/1056. In its letter of 24 September 2019 to the Secretary of State recommending that international aviation and shipping emissions be included in a net-zero CO₂ emissions target, the CCC stated:

“Aviation is likely to be the largest emitting sector in the UK by 2050, even with strong progress on technology and limiting demand. Aviation also has climate warming effects beyond CO₂, which it will be important to monitor and consider within future policies.”

The Government in its response to consultations on the ANPS stated that it will address how policy might make provision for the effects of non-CO₂ aviation emissions in its Aviation Strategy. That strategy is due to be published shortly.

Yes Minister. The 2015 Paris Agreement is part of government policy and you do have to take account of it.

 

In Plan B Earth v Secretary of State for Transport [2020] EWCA Civ 214 the Court of Appeal has decided that the government’s policy in favour of a third runway at Heathrow was not produced lawfully. The policy is contained in the “Airports National Policy Statement: new runway capacity and infrastructure at airports in the South East of England” (“the ANPS”), designated by the Secretary of State for Transport (“the Secretary of State”) under section 5 of the Planning Act 2008 (“the Planning Act”) on 26 June 2018. The designation of the ANPS was unlawful because the Secretary of State, in breach of section 10(3)(a) of the Planning Act, failed to have regard to the desirability of mitigating, and adapting to, climate change in the light of the United Kingdom’s commitment to the Paris Agreement, the non-carbon dioxide (“non-CO2”) climate impacts of aviation, the effect of emissions beyond 2050, and to the ability of future generations to meet their needs. In making the designation the Secretary of State had acted on legal advice that consideration should be given only to existing domestic legal obligations and policy commitments in relation to the mitigation of, and adaptation to, climate change, which did not include the 2015 Paris Agreement.

Section 5(8) of the Planning Act requires that the ANPS should explain how the Secretary of State has “taken into account” government policy and it was necessarily implicit in that obligation that the Secretary of State must indeed first have taken that government policy into account. The Paris Agreement represented firm government policy on climate change and ought to have been taken into account by the Secretary of State in the preparation of the ANPS, but was not – which was legally fatal to the ANPS in its present form. The Court of Appeal stressed that they were not making any finding that there will be no third runway at Heathrow, nor that a national policy statement supporting this project is necessarily incompatible with the UK’s commitment to reducing carbon emissions and mitigating climate change under the Paris Agreement. What the Government now had to do was to reconsider the ANPS in accordance with the clear statutory requirements that Parliament has imposed, including taking account of government policy – and its international commitments under the Paris Agreement.

The Court of Appeal also found the Divisional Court erred by failing to give reasons for rejecting Friends of the Earth’s argument on the non-CO2 climate impacts of aviation and the effect of emissions beyond 2050, having regard to the ability of future generations to meet their needs. In line with the precautionary principle, which was well established under international law, these impacts also needed to be taken into account by the Secretary of State.