Court Finds Unlawfulness In Relation To Government's Net Zero Strategy

• Published date: 27 July 2022
• Subject Matter: Environment, Litigation, Mediation & Arbitration, Environmental Law, Trials & Appeals & Compensation, Climate Change
• Law Firm: Herbert Smith Freehills
• Author: Mr Andrew Lidbetter, Nusrat Zar and Jasveer Randhawa

In R (Friends of the Earth Ltd and ors) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841 (Admin), the High Court partially upheld a challenge to the Government's Net Zero Strategy (the "NZS") under the Climate Change Act 2008 (the "2008 Act").

Key Points

• It is not incumbent on the Secretary of State to rely on quantitative analysis alone on climate change issues where this is not mandated by the legislation.
• It is, however, necessary that sufficient information is provided to the relevant minister and to Parliament in order to fulfil obligations under the 2008 Act.
• Section 3(1) of the Human Rights Act 1998 (the "HRA") does not permit the court to interpret legislation in a way that confers greater rights protection where there is no question regarding the incompatibility of the legislation with a Convention right on an ordinary interpretation of the provision.

Background

The 2008 Act was amended in response to the UK's obligations under the Paris Agreement, which required member states to hold the increase in the global average temperatures. Section 1 of the 2008 Act requires the Secretary of State to ensure that the net UK carbon account for 2050 meets certain benchmarks. The Secretary of Secretary is also required by statute to create carbon budgets for future periods to meet these benchmarks.

Section 13 requires the Secretary of State to prepare "such proposals and policies" as he considers will enable the carbon budgets which have been set to be met. Section 14 requires that "as soon as is reasonably practicable" after setting a carbon budget, the Secretary of State must lay before Parliament a report setting out proposals and policies for meeting the budgetary periods.

Following the setting of Carbon Budget 6, the defendant Secretary of State laid the NZS before Parliament pursuant to sections 13 and 14. The Good Law Project, Friends of the Earth Ltd, and ClientEarth (the "Claimants") sought to challenge this by judicial review on several grounds:

• Ground 1(1): The Defendant erred in law on the basis that he was not entitled to conclude that the proposals and policies in the NZS (prepared under section 13) would enable the carbon budgets to be met.
• Ground 1(2): The briefing material supplied to the Defendant was insufficient, meaning that he had failed to take into account relevant considerations.
• Ground 2: The Defendant failed to include information legally required to discharge his section 14 obligations, namely an explanation for how the NZS will enable the carbon budgets to be met, an estimate of the contribution of each proposal...