Decision Makers Have Significant Discretion In Climate Change Issues

• Published date: 14 April 2022
• Law Firm: Herbert Smith Freehills
• Author: Mr Andrew Lidbetter, Nusrat Zar and Jasveer Randhawa

In R (on the application of Friends of the Earth Limited) v Secretary of State for International Trade/Export Credits Guarantee Department [2022] EWHC 568 (Admin), the court refused to quash a decision to provide export finance in support of a natural gas project in Mozambique.

Key points

• The nature and scope of the enquiry that a decision-maker is required to undertake depends on the nature of the decision which is to be made. For complex political decisions, the decision-maker should be afforded a wide margin of appreciation.
• Courts should be wary of reaching 'hard-edged' interpretations of international treaties. It is sufficient in most cases that the decision-maker's interpretation of the treaty was 'tenable'.
• Where the language of a treaty is high-level and aspirational this supports a less strict approach to interpretation.

Background

Friends of the Earth ('FoE') sought judicial review of the decision of the first defendant, the Secretary of State, 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. UKEF aims to ensure that no viable UK export fails for lack of finance and broadly operates like a financial institution in support of UK exports and investments.

FoE sought to quash the decision on two bases. Firstly, FoE contended that the decision was based on an error of law or fact, namely that funding the Project was compatible with the United Kingdom's commitments under the Paris Climate Change Agreement (the 'Paris Agreement') and/or assisted Mozambique to achieve its commitments under the Paris Agreement (Ground 1(a)). Secondly, the UKEF's decision was unlawful in that it was reached without regard to relevant considerations in reaching the view that funding...