Government faces fresh legal challenge over ‘unlawful’ climate plans
Three organisations are taking the government to court for the second time in under two years over its feeble and inadequate strategy for tackling climate change.
Friends of the Earth, ClientEarth and Good Law Project say the government’s revised net zero strategy – the Carbon Budget Delivery Plan, published 30 March – is unlawful and have filed papers at the High Court requesting a judicial review.
The news follows a damning progress report from the Climate Change Committee, published last week (Wednesday 28 June), which found there are only credible plans for less than a fifth of the emissions cuts needed to meet the UK’s legally binding climate targets. This is down from the government’s independent climate advisors assessment last year that just 39% of plans were fit for purpose.
The government was required by the High Court to publish a revised strategy following successful legal challenges by the three organisations in July 2022, in which the judge underlined the critical expert role of the CCC by stating their advice must be given “considerable weight”.
In last year’s landmark judgment, the High Court ruled that the net zero strategy, which was supposed to set out plans to decarbonise the economy, didn’t meet the government’s obligations under the Climate Change Act to produce detailed climate policies that show how the UK’s legally binding carbon budgets will be met.
After carefully studying the detail of the revised Carbon Budget Delivery Plan, lawyers for Friends of the Earth, ClientEarth and Good Law Project say this revised plan breaches the Climate Change Act too.
Friends of the Earth, ClientEarth and Good Law Project argue that the plan provides no real information on the government’s assessment of the risk of the proposals and policies not being delivered and not meeting legally binding climate targets. At the same time, the information that the plan does include confirms that many of the technologies being relied on to deliver substantial emissions savings are high risk, raising serious questions about the government’s assumption that they will be delivered ‘in full’. ClientEarth argues that this approach is so clearly flawed that it is unlawful and fails to comply with central provisions of the Climate Change Act.
In the hundreds of pages of the plan and associated documents, there are no specifics on the level of risk posed by each policy, or even an overview of whether the plans for each sector are high, medium or low risk. However, reliance is placed on “nascent” technologies at an “extremely low starting point” – such as hydrogen, carbon capture and storage, and low-carbon aviation fuel. These are said to pose inherent delivery risk, uncertainty and challenges, though the precise extent of these risks and how they add up with other risks across the plans remains unclear.
It is also the case that a leaked advisory document from the Department for Environment, Food and Rural Affairs (Defra) assessing the delivery risk of government net zero measures was reported on by the Times earlier this year. Of 44 policies, 21 were marked red or red/amber, showing they will be hard to achieve, the report states.
Friends of the Earth further argues that the government’s approach breaches its sustainable development duty, including by referencing an 8% shortfall in meeting the UK’s Nationally Determined Contribution, a key climate target adopted under the Paris Climate Agreement. The NDC requires that the UK achieve a 68% reduction in its emissions by 2030, as compared to the 1990 baseline.
Friends of the Earth lawyer, Katie de Kauwe, said:
“Despite having nine months to come up with a lawful strategy, we believe this revised action plan still falls far short of the government’s legal obligations under the Climate Change Act. We said we’d take the government to court again if we believed that they’d failed to honour their climate commitments – and this is exactly what we are now doing.
“The climate crisis is already battering Britain and the world with record heatwaves, droughts and storms, and unless politicians take the action needed to slash emissions these impacts will become more severe and more frequent. The good news is that building a green economy won’t just slash emissions; it will also create new jobs, boost energy security and help tackle the soaring cost-of-living.”
Good Law Project's Legal Director, Emma Dearnaley, said:
"We're now in the crucial decade to stop irreversible damage from global heating, so it's vital that we can all see if the Government's flagship plan for tackling the climate emergency is actually going to work.
"It is deeply alarming that the Government’s new plan does not properly set out the risks of key policies missing these essential goals. What are they trying to hide?
"That is why we are pursuing legal action to demand transparency and help us and others to hold the Government to account on its new climate change strategy.”
ClientEarth CEO, Laura Clarke, said:
“The government’s new plan to reduce emissions is not fit for purpose. It relies heavily on unproven and high-risk technological fixes at the expense of near-term action – yet the government ‘assumes’ that it will be delivered in full, despite these stark risks.
“People in the UK and globally need to see the UK take urgent, decisive climate action. But instead, we see hesitation and delay from the government and are almost certain to miss emissions reduction targets.
“As the CCC has again reiterated, real action on emissions can happen with ‘no regrets’ policies that will also help struggling households. Measures such as making homes more energy efficient and investing in active and public transport can both reduce emissions and increase energy security for the benefit of present and future generations.”
- In its Carbon Delivery Budget Plan, published on 31 March 2023, the government said its quantified proposals and policies will only meet 97% of the savings required to meet Carbon Budget 6, and only 92% of its international commitments for 2030. See Friends of the Earth press release
- The Climate Change Committee’s Annual Report to Parliament, published last week, said its confidence in the UK's ability to reach its climate goals has fallen.
- The Cases:
Friends of the Earth
Friends of the Earth’s legal challenge raises grounds under both s.13 and s.14 of the Climate Change Act 2008.
Under s.13 of the Climate Change Act, Friends of the Earth will argue that the Secretary of State for Energy Security and Net Zero acted unlawfully by not considering delivery risk in a lawful way, and that there was no legally sufficient basis for the Secretary of State to conclude that the proposals and policies “will enable” the carbon budgets to be met. Further, Friends of the Earth will argue that the Secretary of State unlawfully failed to put forward proposals that “must” contribute to sustainable development.
Under s.14 of the Climate Change Act, Friends of the Earth will argue that the Carbon Budget Delivery Plan unlawfully does not include information obviously material to the critical issue of risk to the delivery of the carbon budgets.
Forcing the government to comply with its legal duties under the Climate Change Act 2008 and following the successful legal challenge in 2022 is essential if we are going to achieve net zero.
Good Law Project
Good Law Project's legal challenge focuses on the government's refusal to include a proper assessment of the delivery risk associated with each of the policies and proposals in its Carbon Budget Delivery Plan.
Good Law Project will argue that this is unlawful because it is a breach of s.14 of the Climate Change Act 2008, which requires the Secretary of State to publish sufficient information to allow meaningful scrutiny of the government’s net zero policies.
ClientEarth’s legal challenge focuses on the government’s failure to have regard to considerations that are legally essential under s. 13 of the Climate Change Act, related to the risks of its plans not delivering the emissions savings required to meet the UK’s climate targets.
ClientEarth also argues that the government’s assumption that the projected emissions savings from its policies will be delivered ‘in full’ was not rational having regard to the government’s own assessment of delivery risks to key policies. Having an emissions plan that provides confidence in full delivery is a bare minimum requirement for the UK to stay on track to meeting its climate targets.
- Friends of the Earth is represented in this case by David Wolfe KC of Matrix Chambers, Catherine Dobson of 39 Essex Chambers and Nina Pindham of Cornerstone Barristers and by Rowan Smith at the law firm Leigh Day