High Court to hear legal challenges to government's climate plans
The High Court has ordered a three day ‘rolled up’ hearing for the legal challenges brought by Friends of the Earth, ClientEarth and Good Law Project over the government’s revised net zero strategy. A date for the hearing has yet to be set.
Ensuring that the UK meets legally-binding carbon budgets is one of the key issues for Claire Coutinho, the new Secretary of State for Energy and Net Zero.
In a ‘rolled up’ hearing the question of permission is often heard in tandem with the substantive case itself. In practice this is effectively the same as a trial, in that the court is expected to allow each claimant to argue its case in full.
The three organisations believe that the revised net zero strategy, the Carbon Budget Delivery Plan (CBDP), adopted in March 2023, is inadequate and falls short of the requirements in the Climate Change Act 2008. The CBDP is the country’s economy-wide decarbonisation plan.
Last year, the three organisations successfully challenged the government’s original net zero strategy, with the High Court finding that the Government had breached the Climate Change Act and ordering the government to revise its strategy (the subsequent CBDP resulted).
UK carbon reduction targets (known as “carbon budgets”) are legally-binding, and the government of the day is required under the Climate Change Act to deliver a legally compliant plan – or face the risk of being taken to court.
The Climate Change Committee, the government’s independent advisers on climate, found in June this year there are now only credible plans for less than a fifth of the emissions cuts needed to meet the UK’s legally binding climate targets.
Friends of the Earth lawyer, Katie de Kauwe, said:
“We’re delighted to have confirmation that the High Court will hear our legal challenge. We believe we have a strong case that the government’s revised climate strategy is unlawful, with its own advisers saying their plans fall short.
“There is now a new Secretary of State, and this legal challenge is a timely reminder that every UK government has a legal duty to act on climate change – or risk facing legal action. With growing concern over this government’s commitment to net zero, and the prime minister’s pledge to ‘max out’ North Sea oil and gas, the Climate Change Act is more important than ever in acting as a vital backstop to the political short-termism that is threatening all our futures.
“Extreme weather events are fast becoming the norm, with parts of Europe suffering intense heat and engulfed in wildfires this summer. Investing in energy efficiency and home-grown clean power will cut emissions, increase energy security and create the jobs and business opportunities of the future.”
ClientEarth’s Head of UK, Kyle Lischak, said:
“The UK faced its hottest ever day when the Court ruled last year that the UK government’s previous climate strategy was inadequate. Despite that ruling, the government’s plan remains not fit for purpose, and the temperature keeps rising.
“There has been speculation over this government’s commitment to climate action. But the law remains clear – the government must have plans in place that can be relied on to deliver the UK’s climate targets.”
“With climate-driven heatwaves, fires and floods increasing around the world, the UK can deliver real action on emissions now that will also help struggling households at home.”
Emma Dearnaley, Legal Director at Good Law Project, said: “We know from the government's response to our legal action that its latest net zero plan is fraught with risks. This casts serious doubt on the credibility of its policies to meet the 2050 deadline. “But instead of coming clean, the government is actively trying to withhold the assessments of these risks. What are they trying to hide?
“This is yet another alarming attempt by this government to dodge transparency. It’s in everyone's interests to know if our leaders are allowing us to sleepwalk into a climate catastrophe. We need a plan that can be safely relied on to give us a greener future. With so much at stake, we think it's right to fight for transparency and get this vital information published for all to see .
1. In its Carbon Delivery Budget Plan, published on 30 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 2030 target adopted under international law. See Friends of the Earth press release
2. The Climate Change Committee’s Annual Report to Parliament , published in June, said its confidence in the UK's ability to reach its climate goals has fallen.
3. The Climate Change Act came into force in 2008, after a successful campaign led by Friends of the Earth, with huge public, civil society and cross-party support. The UK became the first country in the world to have a science-backed, long-term, legally binding target to cut harmful emissions. Last year’s landmark ruling forcing the government to revise its unlawful first attempt at a net zero strategy showed that the legislation has teeth and as intended, can hold governments of the day to account on climate inaction.
4. Press release from Friends of the Earth, ClientEarth and Good Law Project on their decision to bring legal challenges to the government’s revised net zero strategy (July 2023).
5. 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 failing to properly consider delivery risk to its policies, 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 publish their assessment of the delivery risk, known as ‘risk tables’, associated with individual policies and proposals in its Carbon Budget Delivery Plan.
Good Law Project will argue that this is unlawful because it is a breach of section.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. Through its legal challenge, the organisation wants to force the Government to publish these risk tables in full.
ClientEarth’s legal challenge asserts that the government failed to have regard to considerations that have been found by the High Court to be 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 policies in the CBDP will be delivered ‘in full’ was not rational, having regard to the government’s own assessment that a significant proportion of its policies involve significant delivery risks. Finally, ClientEarth argues that the government has impermissibly relied on the ‘technical potential’ of a significant number of policies – I.e., what a policy could theoretically produce, rather than what it is likely to produce in reality.
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.