Court Of Appeal Reiterates Limits Of Judicial Review In The Climate Change Context

JurisdictionEuropean Union
AuthorMr Andrew Lidbetter, Nusrat Zar and Jasveer Randhawa
Law FirmHerbert Smith Freehills
Published date19 January 2023

In R. (on the application of Friends of the Earth Ltd) v Secretary of State for International Trade/UK Export Finance (UKEF) [2023] EWCA Civ 14 the Court of Appeal dismissed an appeal brought by Friends of the Earth relating to the Government's decision to provide export finance in support of a natural gas project in Mozambique. In doing so, the court gave importance guidance on the role of the Paris Agreement on climate change in domestic judicial review cases.

Key points

  • The court cannot and should not second guess the executive's decision-making in the international law arena where there is no domestic legal precedent or guidance.
  • When considering the lawfulness of a public law decision in the context of an unincorporated treaty such as the Paris Agreement the standard of review in judicial review proceedings may be based on tenability and not correctness.

Background

Friends of the Earth ("FoE") sought to appeal the dismissal of its application for judicial review of the Secretary of State's decision to provide export finance in support of a natural gas project (the "Project") in Mozambique. The decision was initiated by United Kingdom Export Finance ("UKEF") in exercise of delegated powers. At first instance, the Divisional Court was split and the judicial review did not succeed (see our commentary on the judgment).

FoE appealed to the Court of Appeal. It raised the following issues:

  1. Whether it was an error of law for UKEF to have concluded that the decision was aligned with the UK's obligations under the Paris Agreement;
  2. Whether, given UKEF had decided to finance the Project on the basis that funding was in accordance with the UK's obligations under the Paris Agreement, the court should assess the lawfulness of that decision on the basis only of whether UKEF's view was tenable, rather than correct;
  3. Whether the Court of Appeal should determine the proper construction of Article 2 (1) (c) of the Paris Agreement (which relates to making finance flows consistent with a pathway towards low greenhouse gas emissions and climate resilient development) and
  4. Whether the respondents failed in their duty of enquiry under Secretary of State for Education and Science v. Metropolitan Borough of Tameside [1977] AC 1014 ("Tameside") by not obtaining an accurate quantification of the Project's Scope 3 emissions.

Judgment

In a single unanimous judgment, Sir Geoffrey Vos dismissed the appeal and addressed the issues raised by FoE fully in his judgment.

The Paris...

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